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
Posted by Kate Bischoff
