Employee Social Media and Employee Discipline – Caution

February 20, 2018

A number of companies have adopted social media policies that address the types of things employees can post on social media even if it is the employee’s private social media page.  While companies have the right to protect their reputation and their business information, the way businesses monitor and possibly use private social media posts to discipline or terminate employees is something that needs to be addressed with significant caution.  Companies have the right to protect their reputation, but employees have the right to engage in conversations and post information that may not be used for employee discipline.

One of the most challenging aspects of employees using social media is whether companies can rely upon postings and other information developed by employees if the information is critical of the company or management of the company.  A number of recent decisions by the National Labor Relations Board have strongly suggested that reliance upon that information to make disciplinary decisions is contrary to the employee’s rights under the National Labor Relations Act.  Recent changes in the composition of the National Labor Relations Board have suggested there may be more flexibility for companies to address inappropriate statements by employees about the company reputation in the future.  Companies will need to justify the employment action being taken is necessary in order to protect the business reputation and business brand of the company.

Companies are also using social media as a source of information about its employees or applicants for employment.  This is very dangerous as it opens the door for learning information about an employee or an applicant that signals the individual’s involvement in a protected category or protected activity which could create the basis for some type of discrimination complaint against the company.  Companies are better off avoiding the use of social media as part of its employee review or employee hiring process because of the great uncertainty over what information can be learned from the social media site investigation and how that information can create arguments for a presumption of discriminatory conduct by company managers.  This is a challenge because companies want to do the best they can when making hiring decisions and it is hard to ignore information that may be available through a social media search, but it also creates a dangerous precedent and potential grounds for some type of discrimination complaint.

Companies have also established policies that direct managers to stay away from “friending” the employees they supervise on social media sites.  This directive allows the company to focus on conduct in the workplace and oversee the performance of the employee in the workplace setting without being “tainted” by information that may be learned on a social media site.  It is simply safer to base employment decisions on what transpires in the workplace and the conduct of the employee in the workplace without being hampered by or unduly influenced by social media information or social media conduct.  There is great concern that juries today would find against an employer that took action against an employee based upon conduct on a social media site; however, it will always depend upon the nature of the conduct and the impact of that conduct on a company reputation.  Social media postings and activities should be a very limited focus of any employment action being considered by a company.

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