Employee social media issues recently made headlines in the most deplorable way when an employee was fired on September 29, 2015, after he posted a picture of himself online with a colleague’s 3-year-old black son. The picture taken by Gerod Roth, the former employee, resulted (for reasons unknown) numerous bigoted and racists comments from the former employee’s friends.

The picture taken by Roth was facially unassuming and he claims the entire post was taken out of context. But he did little to redeem his cause in light of his reply to a Facebook friend asking “Dude where the hell did you get a black kid??” Roth responded by saying, “He was feral.” Many of the other comments are just despicable and rightfully call into question the character of those responsible.

Polaris Marketing Group President, Michael Da Graca Pinto, responded to the Facebook posting and comments as “disgusting,” and released the statement provided in the inset. However, Pinto later insisted Roth’s 9/29 termination, two weeks after the post, was the result of unrelated issues at work. In any event, Mr. Pinto made the right business decision to issue a strong statement condemning the Facebook posting and making it clear his company in no way approves of such trash.

Social Media and Employees

Social media creates any number of headaches for employers and their human resource professionals. For starters, employers barely have the time to continuously monitor normal business operations for employee misconduct. So to add policing off-duty or social media employee conduct is a burden that most employers are not excited to undertake, nor want to. But as the Polaris Marketing company example illustrates, a company’s success and legitimate business interests are often directly associated with its employees – for better or worse.

Also, when it comes to discrimination, harassment, retaliation, etc., such misconduct increasingly takes place, in whole or in part, through social media. And such misconduct could be imputed to the employer. Accordingly, proactive organizations focused on preventing wrongful employee misconduct and/or limit their liability for it will want to have a plan in place for investigating and redressing issues of unlawful harassment,  discrimination or other workplace-related misconduct. Also, such issues – aside from potentially being unlawful – can impair employee productivity.

But employers cannot simply implement broad employee restrictions when it comes to social media. Employers also cannot just discipline employees who may post or say things on the Internet that are seemingly adverse to the employer’s legitimate business interests, but may be considered protected “concerted activity” under applicable labor laws. This is especially important in light of the National Labor Relations Board’s active interests in applying Section 7 of the National Labor Relations Act to Facebook and social media postings involving union and non-union employees.

What Should Your Company Social Media Policy Say?

With this in mind, it is easy for employers to feel as if they are “damned if they do, damned if they don’t.” But that shouldn’t be the takeaway. Instead, employee social media issues – like most business operations – take careful planning to identify the risks, understand what can be done to eliminate those risks or, minimally, reduce those risks, and then implement plan. And that plan begins with developing written policies for employee social media use.

In this regard, I caution employers against drafting a social media policy that covers too much but says too little with respect to what is expected of an employee when it comes to social media. In other words, it is impossible to meaningfully identify every example of what an employer considers appropriate or inappropriate when it comes to social media postings. Also, attorney Dennis Merley writes at the MN Employment Law Report about the importance of being able to document that employees have read the policy. See An Unread Policy is No Policy At All.

Drafting a social media policy should begin with assessing the business needs and concerns in order to determine what, if any, social media limitations make sense for your business. But a few areas that almost every policy should cover to some extent include:

• The treatment of confidentiality and trade secrets on social media. Confidentiality may extend to company resources, as well as customers, vendors, and patients.
• Clarifying ownership of social media accounts.
• Most importantly, careful attention needs to be given to drafting your company’s social media policy to avoid violating employees’ NLRA Section 7 rights to engage in protected activity. See Employer’s Social Media Policy Found Not To Violate Employees’ Rights.

For more information about employee/employer social media issues, including drafting social media policies for your business, contact employment attorney Jason Shinn. Mr. Shinn regularly addresses social media HR issues. He has also spoken to various HR organizations on the subject of employment law best practices for dealing with social media in the workplace.