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Employees and Social Media: It’s Complicated

By Employers Council Staff posted 04-21-2023 09:19 AM

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Most employees use social media, and much of it has nothing to do with the workplace. Occasionally, however, situations arise where an employee’s social media content becomes a work issue. Often, an employee brings a coworker’s social media post or video to the attention of a manager or human resources director, and sometimes a customer alerts the employer. Knowing how to respond appropriately can be difficult.

What to Ask Yourself

To determine if there is an issue to address, there are three questions to answer:

How does the social media content impact the workplace? It is important to find out if only a few people have noticed the post or if it has been widely seen and is causing a disruption in the workplace.

Is there a significant impact on the bottom line? Considering how the post might impact the income, client base, or employees in the short and long term is helpful.
What actions would reduce the impact? Answers to the first two questions will help to answer this question.

What Legal Protections to Consider

An employer may risk legal action if an employee is terminated due to any of the following in their social media content:

Joining other employees in complaining about working conditions as this might violate the National Labor Relations Act (NLRA), even if the employer does not have a union. Employees complaining jointly about wages, hours, or working conditions are protected by Section 7 of the NLRA.
Speaking out on a topic important to them based on their age, race, gender, age, religion, or disability, since these are protected classes under Title VII of the Civil Rights Act, as amended.
Promoting or talking about their desire to join a union when this is protected under the NLRA.
Pointing out unsafe or unlawful behavior of the employer under laws providing protection, such as the Occupational Safety and Health Act (OSHA).

Acting as a whistleblower protected by a state or federal law providing job protection to those complaining of illegal activity.

In addition, certain states, including Colorado, protect employees’ legal off-duty activities that do not present a conflict of interest with the business.

What Steps to Take

After asking the appropriate questions and understanding an employee’s possible legal protections, additional consideration is necessary. The following steps will help:

Determine the priority of the threat. The greater the impact, the more priority must be given to containing the situation and acting. A social media post that could be seen as derisive to a single customer who has not yet complained might be easy to remedy. Explaining to the employee that the post is work-related and inappropriate and must be taken down or edited immediately may easily resolve the situation. On the other hand, consider the following recent case: An employee complained about local protests in a very derogatory manner, and the employee and others received online threats and constant calls to the dispatch center where they worked. In this situation, the employee exercised poor judgment, putting the operations and employees at risk, and termination was in order.

Investigate before reacting. If an employee has posted something offensive, it is likely that tempers will flare, and action will be demanded quickly. Such a situation is when it is most important to investigate. Gather as many facts as possible. Make sure to read or view the offending post. Ask someone not likely to be affected by the circumstances to look at the post and hear the series of events that took place. Employers Council can help members with a consulting or enterprise membership further investigate the facts by asking questions to illuminate the information needed, or we can conduct an investigation for you. Obtaining the missing information will help you decide what action to take.

Discipline appropriately. Once the facts have been gathered, the appropriate discipline is more likely to be clear. Employers need to make good business decisions about discipline, making sure that it is both appropriate and legally viable.

What Help Is Available

A good first step before there is a social media crisis is to have a clear policy concerning the topic. Employers Council provides sample social media guidelines to include in an employee handbook in this document.

If you do have a crisis, assistance from someone on the outside who has experience, can provide a calm outlook, and help avoid legal pitfalls is what you need. Employers Council can help. We can guide you through it and provide legal and practical human resources advice if you are a consulting or enterprise member. If you need assistance or have any questions, please email our Member Experience Team.