Only YOU can prevent a social media firestorm.
My Facebook page is a snooze. Two members of my immediate family do not want their existence to be acknowledged on the internet. I almost never post anything, except to wish someone a happy birthday. When I "Like" something, it's a cute baby, or the craft beer that my cousin is drinking on his patio, or a picture of a dogwood blossom that one of my friends took while on her afternoon stroll.
I never "Like" a political post, even if -- in the privacy of my own home -- I'm shouting, "YEAH! Tell it!"
In short, you would never want to be my "friend" because I'm so boring. But my dullness helps to keep me safe from the social media mob. At least, I hope so. And if my law firm ever decides that it's time for us to part ways, I doubt that it will be because of anything I did on social media.
But that's just me. You are more interesting than I am. And interesting people are being harassed, threatened, and fired from their jobs because of their social media postings. So, as a public service, I am providing these tips for employees and employers about social media.
For employees
The first rule is one from which all the others flow: Unless you work for the government, the First Amendment does not protect your right to post your every opinion on social media. In the context of social media, the First Amendment protects you only from having the police come to your home and throw you in jail for expressing your opinions. It doesn't protect you from other consequences of what you say -- like ticking off your friends, or losing your job.
If you like to post about politics, watch out. Especially nowadays. Anything you say about politics (no matter what you say) will cause 50 percent of your "friends" or followers to become very angry with you. Some people may react so negatively to your views that they may try to ruin your life.
If you're into sex, or illegal activity, don't use social media to express yourself. Inquiring minds don't want to know. Really. We don't. (The sex postings could be considered sexual harassment if your co-workers see them and are offended. Which brings me to my next point . . .)
If you just have to post about politics, sex, or illegal activity, unfriend all of your co-workers first. Also, make sure you have the most restrictive privacy settings available. Once you have done both of these things, give it a try, but understand that somebody may still manage to find your post, take offense, and report you to Human Resources.
As the above points should have made clear, understand that anything you post on social media can (and probably will) be used against you. If not by your employer, then by the social media mob, which is meaner than the meanest employer.
On the other hand, if you post about adorable babies, what you had for dinner, and your pets (in other words, if you're as boring as I am), then you are probably safe.
For employers
Generally, you have the right to take action against an employee for an inappropriate social media post that offends co-workers or that disparages your business, discloses your confidential and proprietary information, or reflects badly on your company. You can also take action against an employee who posts content that is discriminatory or harassing based on race, sex (including sexual orientation and gender identity), national origin, religion, age, or disability. Or, especially relevant to health care employers and first responders, against an employee who posts information that violates the privacy rights of patients or other private individuals. Or against an employee whose post indicates the employee is involved in illegal activity, or communicates threats.
However, always consult with your labor or employment counsel before you act. If the posts relate to terms and conditions of employment, they may be "protected concerted activity" within the meaning of the National Labor Relations Act, which means that it could be unlawful to take action against the employee. This is true even if your company is non-union. Even a "Like" could be protected concerted activity.
PROTECTED CONCERTED ACTIVITY
Remember this famous case from a few years back? An employee got mad at his supervisor and during his next break posted on Facebook, "Bob is such a NASTY MOTHER FU**ER don't know how to talk to people!!!!! Fu** his mother and fu** his entire fu**ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"
Only the real post didn't include asterisks.
As one might expect, the employee was fired, but the National Labor Relations Board said that he was engaging in protected concerted activity, and the U.S. Court of Appeals for the Second Circuit agreed.
Prohibit (or strongly discourage) your managers and supervisors from being "friends" with employees on social media. If they're "friends," they are likely to get too much information, which could affect their ability to manage in an unbiased manner. Does your supervisor really need to know that his employee has been on anti-depressants or is a member of a weird religious cult? Ignorance is bliss. Also a defense to a discrimination claim.
If you think you want to take action against an employee because of an offensive political post, think twice. In the United States of America in 2020, every political opinion -- no matter what it is -- will be repugnant to 50 percent of the adult population. (Not an actual statistic, but pretty close.) So don't treat views on one side of the political spectrum as evil, harassing, and offensive, while treating views on the other side as correct or, at least, unobjectionable. In other words, treat expressions of opinion from the left the same way you'd treat equivalent expressions of opinion from the right, and vice versa. You can make an exception for any expression (from either side) that violates your discrimination and harassment policies.
Hold all employees to the same standard. If anything, be more strict with higher-ups who violate your policy.
Image Credits: From flickr, Creative Commons license. Smokey Fire Danger sign by Loco Steve, little Smokeys by Gerry Dincher, "Only You" from U.S. Forest Service, Pacific Northwest Region.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010