Employee Social Media Use: How Employers Should (and Should Not) Address It
By Procopio Partner Wendy L. Tucker
Social media does many things. It allows us to keep in touch with friends, stay on top of political and celebrity news, take surveys to discover which “Game of Thrones” character we’re most like, and watch funny cat videos. It also allows an individual employee’s controversial opinions or comments on current events to reach a widespread audience, which can cause serious headaches for employers.
We’ve seen employers terminate employees for their social media activities. CBS fired of one of its top attorneys for her Facebook comment on the mass shooting in Las Vegas tragedy. Some employers merely suspend the employee, as was the case with an ESPN anchor when she took to Twitter in opposition to an NFL owner. What these cases have in common is the potential for an employee’s use of social media to have a significant impact on an employer’s financial health. To what extent can—or should—employers be monitoring social media use, and what action does an employer have to take?
If the employee posts to the employer’s social media site or uses the employer’s equipment, the employer can have a great deal of power to control what may be posted and to address misuse. In those circumstances, however, it’s critical to have a thorough written policy setting out the terms and conditions for employee use of company accounts and equipment and ensure employees are aware of the policy.
Complications arise when dealing with employees who use their own equipment to access their own personal social media accounts during non-working time. Have they just taken a shot at the company or a co-worker on Twitter? Posted selfies on Instagram from a bar when they had called in sick? Railed against one of their employer’s customers on Facebook? Or worse, had a post go viral with a comment that rouses public rage against the company? How to handle these issues depends on state law and an employer’s internal policies. The legal boundaries of what both employers and employees can do when it comes to social media are not always clear and may depend on where the employer is located.
In California, there are a variety of overlapping laws that can affect an employer’s options. On the one hand, employees have some protection for lawful off-duty conduct, and may even have First Amendment rights protecting some off-duty speech. Employees also have a right to privacy and other legal protections that can prevent an employer, in some circumstances, from digging too deeply into an employee’s conduct on non-company social media accounts. At the same time, employers may be found liable (if aware) for permitting a hostile work environment if one employee is posting harassing posts about another—even if the posts occur on private social media accounts during non-working hours. They may also face significant backlash from irate customers due to an employee’s comments. So what is an employer to do?
The first step is to have clear policies about what is and is not acceptable in connection with both professional and personal social media use. An electronic use policy governing how employees can use employer equipment is likewise critical. It is also important to have a code of conduct for employees to follow—particularly higher level or management employees—that prohibits them, to the extent possible, from engaging in conduct that embarrasses or damages the company. These policies provide the critical support necessary to allow companies to take action to respond to damaging employee conduct.
Another essential step for damage prevention is to train employees on relevant policies and on the use of social media in general. Many employees simply don’t understand how a seemingly private comment can go viral and impact their lives forever. In the electronic age, privacy has evaporated. Even when retracted or deleted, tweets and social media posts can live on through screen shots and other means. In order to limit this damage, savvy employers ensure they document policies as clearly as possible in advance, and make use of sound legal counsel as issues arise.
Wendy L. Tucker is a Partner at Procopio and a member of several of its practice groups, including Labor and Employment. She counsels charter schools, public agencies, private companies, Native American tribes and health care entities by providing practical, effective advice to assist in complying with all aspects of state and federal employment law, while at the same time reducing the risk of potential lawsuits.