March 6, 2018
There are many concerns employers have when it comes to employee use of social media. It is part of today’s culture and employees are going to be active users of social media sites such as Facebook, Twitter, Instagram and Snapchat. But when an employer feels that an employee is not following the “rules” when it comes to their social media activities, what rights do employers have?
First, let’s consider what types of activities an employer might feel are against the “rules” when it comes to employee use of social media. Employers may have concern when employees are engaged in social media activity while at work and while using company equipment. It may also be of concern when employees make comments about the company in social media posts. Another concern is employees who post on social media something that would cause an employer to question the employee’s integrity, for example, calling in sick and then posting about the excitement of the weekend trip they are taking. Employers need to make sure the actions they take against employees when these types of posts occur are within their legal right.
A big question for employers is whether or not they can discipline an employee for the content of their posts.
Private employers, in many cases can discipline employees for posts regarding the company that could negatively impact business, the goodwill of the company, or that discloses confidential information.
When an employee makes a post that expresses negative opinions about the company it is a different situation and if an employer takes action against an employee it could be seen as a violation of employee rights to discuss terms and conditions of employment under the National Labor Relations Act (NLRA). Under the NLRA, employees are allowed to discuss working conditions, complain about the terms and conditions of employment, discuss wages, hours of work, as well as safety conditions… and they CAN post about these topics on their personal social media pages.
Employers want to be mindful of supervisors and managers becoming friends with, or following subordinate employees on social media sites. If a manager, for example, takes disciplinary action against an employee and the employee feels that the action was taken based on a protected characteristic that the manager may have discovered on social media, the action may be seen as discriminatory or retaliatory in nature.
In certain circumstances, the employer has the right to act if there is suspicion of potentially unlawful activities that have been made public on a social media post. For example, if an employer finds that employees are making comments on their social media pages complaining or inferring that there is harassment occurring in the workplace, action should be taken as though the employee reported the harassment directly to a company representative. An investigation should take place, and if harassment, discrimination or retaliation are occurring, the employer must take appropriate action against those employees engaging in the unlawful activities.
When employees break the employer policy regarding the use of social media while at work, be it on company equipment or the employee’s own electronic devices, disciplinary action can be taken.
The employer social media policy should clearly state the employer expectations on when and on what equipment the employees can participate in social media activities.
For example, the policy may state that employees who have social media duties as part of their job description will be allowed to make social media posts around company initiatives during the day as part of their job duties. The policy may also state that personal social media activity is restricted only to break and meal periods. Those employees who are not following the rules are subject to disciplinary action, up to and including termination of employment, no matter the nature of the social media posts.
Employees taking time off of work, whether claiming they are sick, or even for longer periods of time (under the Family and Medical Leave Act (FMLA) or other state leave provisions), or even under specific company extended leave policies, may make social media posts which lead the employer to doubt the validity of the reason for the leave. With many state sick leave laws an employer is not able to ask for a verification of illness from a physician until an employee has been out of work for a number of days. So even if the employer has reason to believe the employee lied and was not sick when taking a day or two off, the employer is probably better off discussing the social media post and suggesting they consider the reaction of others rather than disciplining the employee. The same holds true with FMLA or extended leave of absence. An employee may provide medical certification that leave is required and may dictate that the employee is unable to perform the essential functions of a job, but it does not mean that the person cannot take a vacation.
An employee on an extended leave may post photographs of travel on social media while on medical leave. An employer should not assume that the employee is falsifying the need for leave.
Social media is used by the masses and many times people fail to think before they post. Employers, though frequently frustrated by information posted by employees, need to stop and think about the impact of the post and the appropriate way to address.
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