Thursday, November 5, 2015

Discipline Based on Social Media Activity – An Update

Social media is no longer trendy.  It’s commonplace, and so is discipline imposed because an employee posts something inappropriate.  According to a Proskauer survey, 70 percent of employers report taking disciplinary action against an employee for misuse of social media.
Congress and state legislatures have not yet taken much action to govern employers’ responses to employee posts, but there has been significant litigation.  Take, for example, the Steak ‘n Shake case from Ohio, in which an employee alleged that he was the subject of repeated harassment by a co-worker and his supervisor because of his race and disability.  The employee claimed that the harassment spilled over onto Twitter. Although the employee alleged that the restaurant’s human resources manager did not properly investigate his complaints, it appears that the restaurant did fire the employee responsible for the tweets.  This case, which has not yet been resolved as far as we can tell, illustrates how easily social media can become a part of workplace disputes.
Another example involves the Ford Motor Company.  Thomas Banks worked for a Ford contractor.  After Ford announced support for same-sex marriage, Mr. Banks wrote and posted on an internal social media site that Ford’s stance was “an assault on Christians and morality.” He was terminated by the Ford contractor as a result of his posts.  He sued his former employer, alleging that his religious beliefs resulted in his termination.  In testimony before the EEOC, the contractor stated, “the tone of the comment… was discrimination in and of itself and that’s not something we can protect.”  No news yet on how this case will shake out.
The National Labor Relations Board takes workplace social media issues very seriously.  In addition to issuing advice on social media policies, the Board has been particularly active in cases involving employees terminated for complaining on social media about their workplace, working conditions, or supervisors.  The now notorious and vulgar Facebook posts and likes at issue in Triple Play Sports Bar & Grille were found to be concerted protected activity by the Board, and its decision was recently affirmed by the Second Circuit Court of Appeals.  The posts contained numerous expletives referring to the restaurant owner-employers, but the Board and Court of Appeals found that the comments were protected because they dealt with a workplace issue governed by the National Labor Relations Act and because they indicated efforts by the workers to get and give mutual support.
As this sampling of current cases indicates, social media’s impact on and interaction with the workplace is a fact of life for employers and can’t be ignored.  Employers need to have current, effective, and lawful social media policies in place. Managers and supervisors need to understand the difference between social media activity that affects the workplace and social media activity that is private and best ignored.  Like all personnel decisions, discipline or termination because of social media activity should be undertaken only after careful consideration of the facts, circumstances, and legal risks involved.  We expect to see lots more cases like these, and as the law develops, we’ll report it here (and tweet about it).

Posted by Kate Bischoff  
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