Personal social media posts by your employees can have all sorts of unintended business impacts. How you respond (or don’t respond) can have both legal and practical implications. Fortunately, you have more power than you think.
While social media has been the platform for any number of very positive things, it can also be terribly divisive and hurtful. Rather than seeking out opposing viewpoints, some people immerse themselves in echo chambers who think exactly the way that they do to the exclusion of others, and in such environments, it’s easy for everything to become politicized.
Take the current pandemic as an example. While many have embraced the CDC’s recommendation of wearing a mask in public settings, others have pushed back, elevating a public safety precaution to a political issue.
The killing of George Floyd and the resulting protests and civil unrest are similarly instructive. Fundamentally, we should all be able to agree that someone accused of a non-violent crime shouldn’t wind up dead after the police arrive. But, as seems to be case with depressing frequency, the basic human rights issue quickly morphed into political entrenchments that tried to shift the focus to current culture wars. For example,the protesters chanting “black lives matter” were quickly countered by others saying “all lives matter.” And while that statement may be true, it misses the point. The expression “black lives matter” is not an attempt to exclude or diminish other lives, but to draw attention to the deep disparities in how black people are treated by police.
So, what does any of that have to do with your workplace? A lot, actually.
The protests that followed the killing of George Floyd have triggered deep emotional responses in people across the country, including your employees. When, in turn, they enter the echo chambers of their social media circles, their emotions are being shaped and influenced by the messaging reflected back at them. Thusly girded by the ideologues in their feeds, they may post things to their personal social media accounts that might be deeply offensive to their co-workers, the people you work or do business with, or to members of the general public.
And when that happens, you need to determine the proper response, for if you don’t, it could impact your organizational reputation, trigger social media retaliation, disrupt team dynamics, and even, potentially, lead to lawsuits.
There are a number of potential legal issues associated with employee social media posts.
Many of our clients are hesitant to act on personal social media posts, because they believe employees have a First Amendment right to say or post anything they want. As it turns out, they don’t.
The First Amendment protects speech from being suppressed by the government. Private employers (more on public employers in a second) aren’t bound by any such restrictions. As a result, even though a post may be done completely on an employee’s personal time using their personal, non-work accounts, you can demand that employees take down posts, or even go so far as to discipline and/or terminate them if you determine that’s the best course of action.
While the First Amendment applies differently to public employers, who, after all, are the government, that doesn’t mean employees have an absolute right to say anything they want on their own time without risk of consequence. Broadly speaking, in order for an employee’s public speech to be protected, several requirements must first be met, chief amongst which is that the speech has to involve a matter of public concern. Saying racist things on social media, for instance, certainly wouldn’t rise to that level.
However, even if the private speech somehow does involve a matter of public concern, a public employer can still take action if it can show that its interest in efficiently providing services to the public outweighs the employee’s interest in speaking freely. Using the example of racist posts, presumably the public employer serves all members of the public, including people of color. If so, its ability to provide services to those members of the public could easily be impaired by employing staff with publicly racist beliefs.
You have a legal obligation to keep your workplace free from harassing or discriminatory behavior. Your obligation extends to actions and behaviors that occur outside of the workplace, such as through texting or social media posts. While a single inflammatory post is unlikely to amount to legally harassing behavior, it could be part of a larger pattern of behavior and ignoring it could come at your peril.
National Labor Relations Act (NLRA)
Even in non-union environments, the NLRA does protect certain types of speech. For instance, employees probably have a right to post complaints about how much they are being paid, their long hours of work, or discipline they just received, and disciplining them for doing so could be a violation of the NLRA, since each of those posts are discussing terms and conditions of the workplace. Racist, harassing, or discriminatory posts are not protected by the NLRA.
Whether or not an employee’s social media posts have any legal implications, they most certainly can have a negative impact on how they are perceived by their co-workers. When that happens, co-workers usually start talking behind the employee’s back, start avoiding that person, and do other things that corrode team dynamics an impair performance.
The problem is that people posting things online very often don’t think about who might see what they post. As a result, it can be worth thinking about how you can help your employees be smarter about managing their social media profile. A place to start might be with something like the following communication I crafted for a client:
In general, we have no interest in regulating your behavior outside of the workplace. However, when the things you do have the potential to impact your co-workers, our business partners, or our customers, then we have no choice but to take action that, under the right circumstances, can go all the way to termination of employment.
Fortunately, that hasn’t been necessary in current situation, but it should be an important reminder to all of us that you should think carefully before posting anything that might be traceable in some fashion to our organization. Our customers, like our employees, come from all political, cultural, and religious backgrounds. Posting something a co-worker, customer, or business partner might find offensive is unacceptable, even if it is done completely on your own time and personal electronic device.
Being smart about your social media presence is important not only for as long as you are employed with us, but for any jobs you may seek in the future, since employers are increasingly conducting social media searches as part of the hiring process, and there is no right to free speech in private employment. Only you can be responsible for your personal brand—make sure you manage it well.
A client of ours recently received screenshots of racist comments on an employee’s social media page from a member of the general public. While the employee didn’t directly tie any of the comments to the employer, the employee’s social media page listed our client as the employer. The person sending the screenshots was outraged that our client would employ someone who would publicly say such things, and demanded our client do something about it.
In that particular case, the person sending the screenshots was a potential customer, but even if that’s not the case, mishandling a situation like that can lead to all sorts of negative social media backlash, which might eventually make its way to your current and prospective customers, business partners, vendors etc. For example, recently, racist social media posts by the teenage daughter of a local company’s president cost the company very dearly, as they were made public by someone whom they’d upset, which led several businesses to discontinue selling the company’s products, despite the president’s very public denouncement and apology.
You have the power to take action on the social media activity your employees engage in on their own time. While your general approach should be to avoid spending any time on employee social media accounts, when you become aware of something that may be hurtful to employees, harmful to your reputation, or off-putting to your customers or business partners, a swift and appropriate response is critical.
This is even more true in times of social unrest, when emotions can run high, and employees can be tempted to post things that may be deeply offensive to those most impacted by whatever is causing the current social unrest.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
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