As millions of people turn to Facebook each day for socialization, reading the news, and posting funny pictures, employers are naturally concerned about how employee social media use reflects back on their company. The news is full of stories involving employees who were fired or at least put on probation for inflammatory or offensive material, but these firings are not always judged as legal or fair. Find out what makes it tricky to craft an employer social media policy so you can tread through this minefield carefully.
First, a policy regarding the consequences for behavior outside of work, including posts made on social media, must include specific examples of unacceptable behavior. Writing a general blanket policy that would allow the employer to pick and choose what's unacceptable may violate the requirements set by national labor boards and other groups. In order to come out ahead in a mediation situation or legal case, it's best to be as specific as possible and list exemptions as well. For example, mention that racist and sexist postings are specifically forbidden, or outline that employees shouldn't name the company when posting about work situations.
Fair Treatment Importance
Once you've set a social media policy, you must enforce it fairly across the entire body of employees. Even the CEO and highest-level executives must be held accountable to the same requirements set for an unpaid intern working with the company. By demonstrating a clear record of treating everyone in your company equally, you're not going to run afoul of a discrimination claim from a former or current employee who is reprimanded for something they post on social media. The policy itself should also outline how it will be applied evenly across the board so no one can claim they assumed they were exempt from its requirements.
Not all companies and organizations have the same rights for limiting what their employees do and share outside of work hours. Recent cases show a trend to interpret public employees as preserving their rights to free speech even when their employers set a limiting clause on social media posts that contain negative material. Depending on who funds the company and how employees are hired, you may not be able to limit their ability to post anything they like during their own free time. Discuss your company's status with a lawyer, especially if you're in a gray zone like a non-profit organization or a limited-profit company.
For private companies, social media policies are not generally considered a constitutional issue as long as they're included as part of a hiring contract. It's not enforceable to simply set a new policy and expect all current employees to immediately follow it. Make sure an employer lawyer guides the process of establishing a new media policy in a business with many established employees so that there are no violations of due notice.
Finally, some states are establishing laws either in favor of employee free speech or the employer's right to maintain a certain image. For example, South Carolina is going as far as banning the use of social media while at work entirely unless it's necessary for the function of an employee's job. Other states are establishing rules that employees can post practically anything outside of work hours, and others set regulations based on whether the employee is clearly linked to the employer in some way during the offensive posting. Check into your state's current and pending laws regarding this crucial labor detail before determining what's legal in your state. Setting a policy that violates state laws will only make the policy impossible to enforce.
For more information and advice, contact an employment lawyer at a law firm like Mohajerian A Professional Law Corporation.Share