Employers are by now well-aware of the role social media has played in blurring the line between individuals’ personal and professional lives. The grey area has only expanded as employees find themselves in the midst of a global pandemic, at home with time to kill with limited emotional outlets, and as controversial societal and political issues have risen to the forefront. Following the recent death of George Floyd, protests and demonstrations have occurred on a daily basis and various outlets have reported a significant, corresponding increase in individuals expressing their views on social media. To the extent they have not faced these questions already, employers may be faced in the coming weeks with the tricky question of what to do if an employee posts racist, threatening, or other objectionable content on his or her social media platform?
Before responding, employers should pause to consider the critical legal and non-legal implications that can arise from employee social media activity. Employers should first review the conduct in the context of their written policies. Employee Handbooks should include anti-discrimination, anti-harassment, code of conduct, and workplace violence policies that specifically address online activity, including social media usage. In this day and age, all companies should also have social media policies that, at a minimum, incorporate these other policies, permit the employer to view and monitor public postings created using company resources under applicable law, and prohibit employees from posting comments in the company’s name or as a representative of the company.
It is also important to enforce these written policies consistently. The use of racial slurs on social media in the context of recent nationwide protests should warrant disciplinary action consistent with other forms of discriminatory or harassing conduct. Failure to address an employee’s bigoted posts, harassing conduct, or activity that incites violence could lead to race discrimination or harassment claims under state and federal law. Conversely, online speech regarding terms and conditions of an employee’s workplace may also be protected under the National Labor Relations Act (“NLRA”), which applies to employees engaging in protected concerted activities.
In all cases, employers should conduct thorough investigations before taking disciplinary action. Objectively offensive or threatening language brought to the company’s attention by co-workers or customers can affect the workplace and undermine the company’s business reputation, and are grounds for legitimate disciplinary action. Employers should also provide the employee in question an opportunity to explain his or her conduct and to provide appropriate context.
When determining whether to take disciplinary action against an employee for their social media conduct, it is critical to consider the context of the posts and the nature of the company’s business on a case-by-case basis. Taking or failing to take action against offending employees can not only result in legal liability, but can also affect workplace morale and public perception.
Decisions regarding whether and how to best respond to an employee’s social media activity should be taken carefully and with the advice of legal counsel.