By Jeff Jones
Special to the UCBJ
Employers are increasingly dealing with situations where a member of the public complains about an employee’s private social media activity. Generally, this involves an employee who in some way identifies themselves as an employee of the employer on the social media site and makes a comment that offends someone else. The someone else then sees fit to contact the employer and complain. Ironically enough, this is frequently done via posting on the employer’s own Facebook page. When this happens, what is the employer to do?
Is it Protected? One of the first questions to ask is whether there is something about the employee’s post that is protected by law? There are several laws that may give protection to the statement the employee made.
For example, the National Labor Relations Act gives employees the right to engage in concerted activity for mutual aid and protection with regard to wages, hours and working conditions. If the post involves communication about workplace conditions, it may fall into this category. It is not always obvious or easy to discern whether a comment falls within this category of protected communication. If unsure, this is a good time to consult labor counsel.
Equal Employment Opportunity (EEO) laws may also provide protection. If the post in some way opposes what the employee believes is a discriminatory condition at work then it could well be protected by anti-discrimination laws.
Many whistleblower laws could come into play. By way of example, a concern about safety could implicate OSHA, or a complaint about environmental impact could raise EPA concerns.
What about the First Amendment? Some are under the impression that an employee can say anything they want, particularly when off duty, because the First Amendment grants the right of free speech. For private employers, the First Amendment is not a concern. While the First Amendment prohibits the government from abridging certain rights, it does not prohibit private employers from taking action on the basis of employee speech.
For governmental employers, the First Amendment is a concern, however it does not protect all speech. In general terms a public employee’s speech is likely protected when the employee speaks as a private citizen about a matter of public concern and where the speech does not interfere with the job.
If the statement is clearly protected, then the employer cannot take an adverse action on the basis of the statement. If some part of the statement is protected and other parts are not then the employer will want to think further and consider more questions.
Does it Matter? It is worth asking whether the “offending” post actually matters? It seems that people can be offended by all manner of things these days, including harmless opinions, comments that are simply rude or plainly no more than a rant or tongue in cheek statement. It is not necessary to react to everything.
There are times when an employee’s post is not outrageous but also not appropriate and not something you would want associated with the employer as an organization. In such cases simply bringing the employee’s attention to the fact you have received a concern, and to the reality that their post is not something that you wish to have associated with the organization, may be sufficient. Where it is appropriate to do so, handling the matter in a low-key way such is this is best.
Suppose it really is awful? Employees have been known to post comments that are blatantly racist or sexist, or that advocate violence, or that are otherwise wholly inconsistent with the values of the organization. In these instances, the employer should follow its usual due process steps and speak with the employee before reaching a decision. Assuming the process leads to the conclusion that the employee in fact posted such remarks, it is certainly appropriate to discharge from employment on the basis of the post.
Conclusion. When confronted with a social media post by an employee, consider whether there is anything about the post that is protected. Think through whether the post really matters and, if so, the nature of the most appropriate corrective step. Stay calm and work your process … that will lead you to a good result.