How to discipline for social media posts without getting sued
Katie Loehrke, PRH, SHRM-CP
Employment Law Today
If you’ve ever seen a social media post of what someone had for breakfast, you probably know that there’s not much some people
won’t post online. For employers, this can make things complicated, especially when an employee’s posts relate to his or her employer. When considering discipline for employees based on a social media post, employers have two main considerations to make.
#1: How did you gain access?
Under the Stored Communications Act (SCA), an employer may access and read electronic communications that are stored on a company server (this is often the case with company email, for example). However, when data is stored on an outside server (as is the case with posts on Facebook or Gmail), an employer would need to have been granted access to the post “freely” to read the content.
Freely-given access under the SCA could, in the context of Facebook, include an employee who has “friended” his boss. An employer could also gain access to a post if another employee (the original employee’s Facebook friend) accessed the post and shared it with the employer. Essentially, someone who has access can share that access.
An employer may also access publicly available content. On Facebook, this includes content that anyone could see, even without a Facebook friendship. On a public facing site like Glassdoor.com (where employees can leave information about their salaries as well as reviews about their employers or former employers), all data is publicly available, so employers may access any of that content.
#2: Was the content protected in any way?
Reputation, once lost, can be extremely difficult to restore. So when employees make damaging remarks on social media, employers may be tempted to do whatever they can to shut it down. But reacting before considering whether the post itself is a type of protected activity could be a mistake. Unfortunately, more is protected than employers realize.
Discussing terms of employment
Perhaps the widest umbrella under which an employee’s comments could be protected is the National Labor Relations Act (NLRA). This law gives employees the right to discuss terms and conditions of employment — which includes wages and working conditions — with one another. Comments about management, salary, promotion decisions, company direction, and many other subjects can be protected under this law.
Another way an employee’s comments can be protected is if they complain about discrimination online, which one employee recently did on Glassdoor.com. After this employee took leave for gender confirmation surgery, he asked to work from home part time to complete his recovery. After some dispute, the employer agreed, but subjected the employee to strict monitoring, which the employee said was not in place for other remote employees who were heterosexual and nondisabled.
On Glassdoor.com, he wrote the following about the company and was terminated shortly after being confronted about the post:
“If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball — then you’re likely to find yourself on the outside. Treatment in the workplace, in terms of who gets flexible hours, interesting projects, praise, promotions, and a big yearly raise, is different and seems to run right along these characteristics.”
The Equal Employment Opportunity Commission (EEOC) is now suing the employer on the employee’s behalf, alleging that the termination was illegal retaliation for speaking out against what the employee believed was discrimination.
Key to remember: Employers that wish to discipline employees for social media posts must consider both whether the employer had the right to read the content and whether the post was protected in any way.
What isn’t protected?
Between the NLRA and discrimination laws (which include antiretaliation provisions), a good share of employees’ online posts will be protected. However, if an employee isn’t discussing terms and conditions of employment and isn’t suggesting that the employer may have stepped outside of legal lines, a company may be able to impose discipline.*
Examples of posts that (assuming there isn’t further context) would not likely constitute protected activity:
“I can’t wait until I don’t have to work at Company X anymore!”
“If only my boss knew how little work I do all day!”
“I’d like to punch my coworker in the face.”
“Can’t wait to call in sick on Friday to go to the big game!”
* Employers should remain aware of states, like California, with laws protecting legal activity during nonwork time.
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