In this blog, I want to focus on one critical aspect of social media training for supervisors and above. That is, what they should do when they see, or otherwise learn about, a post, blog, tweet, etc. of concern.
The short answer is that they should neither respond to it nor ignore it. Instead, they should report it to HR, so that HR, often with legal advice, can determine whether the employer is required to take corrective action, prohibited from taking adverse action or do something in between.
As a general rule, social media content can be divided into five categories. For purposes of this blog, I shall refer to all such content as “postings.”
First, there are postings that constitute protected concerted activity defined broadly under the NLRB because they relate to wages and other terms and conditions of employment. Employers cannot take adverse action against employees for these postings, subject to some very narrow exceptions.
While generally employers cannot take adverse action in response to protected concerted activity, employers generally can attempt to dialogue with the employee about the concerns expressed in the hopes of resolving them. One critical word of caution: If there is adverse action against the employee later, he or she undoubtedly will claim the conversation with him or her as evidence of a discriminatory motive
This does not mean don’t talk and let the concern fester. It means understand the potential risks and rewards before doing so.
The second category is where the employee alleges a legal wrong. For example, she posts that she has been sexually harassed, tweets that the company has a pattern and practice of age discrimination or alleges insider trading. In these cases, the individual generally cannot be subject to adverse action for her content. Moreover, the employer generally cannot engage in a risk-reward assessment as to whether to talk with the employee. If the employer becomes aware of an allegation of legal wrong doing, the employer almost always must investigate -- and that begins with a discussion with the employee in which non-retaliation is emphasized heavily.
The third category is where the individual violates a workplace policy (as opposed to law); for example, announcing embargoed information such as announcing a new product before the company does. In these cases, there is not a legal obligation to respond, but a business right to do so. But be careful: the difference between the first category and the third category is easier to articulate than to apply. For example, while an employer can have a policy that protects confidential information, it cannot apply it to cover protected concerted activity. For example, an employer could not discipline an employee for posting wage rates legitimately obtained.
The fourth category of cases is where the employer must investigate and may have a legal obligation to take corrective action because the employee’s posting may violate federal, state or local law. Examples include an employee posts racists comments about co-workers, discloses PHI about patients or leaks what could be considered insider information by the SEC.
Even here, employers need to proceed with caution. For example, only in 12 states an employer cannot, as part of its investigation, ask an employee for his or her password. In all states, asking creates risks of civil and criminal penalties under the Stored Communications Act. Under the Stored Communications Act, employers even need to be careful about how they ask employees for a posting which is private, which an employee mentions, but does not share with the employer.
Finally, there are postings that are neither protected by law, nor impose a duty to act. For example, let’s assume an employee has on his public Facebook page his affiliation with your employer. He also posts pictures of road kill. Those postings would neither be protected nor condemned by law (even though they would be vile). So the employer would have the right, but not the obligation, to ask the employee to remove them if he or she is going to post them on a social media platform which identifies the employer.
Here, too, however, there are complexities. In some states, such as New York and California, lawful off-duty conduct ordinarily is protected. It is possible that in these and other states such vile postings would be protected.
Is your head spinning? This leads me back to my original and critical point.
Supervisors cannot and should not resolve these issues on their own. They should be instructed to report postings of concern to HR, so that HR can determine what they can, can’t or must do.
This blog should not be construed as legal advice, as pertaining to specific factual circumstances or establishing an attorney-client relationship.