A Discussion of Social Media and Termination of Employment
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[fa icon="calendar"] Apr 5, 2018 7:04:00 AM / by Michelle Nystrom

Michelle Nystrom

Is Social Media Behavior a Valid Ground for Termination?

A Discussion of Social Media and Termination of EmploymentWhen running a business, rules and regulations can sometimes get a bit confusing. Putting rules into place about social media regulations are one of the most tedious tasks because of how tricky it can be to use as grounds for terminating an employee. Things are not so black and white once you are publicly on the web. Depending on each situation, social media misuse can absolutely be grounds for termination, although the scenario has to be thoroughly investigated because not all social media behavior can cause an employee to be terminated.

Employee social media behavior should always be monitored, and company regulations should always be clear about what is appropriate or inappropriate to post on the web. According to Forbes magazine, posting information about the employer or engaging in discussions with coworkers about the employer is not grounds for termination, even if the posts are critical of the employer. However, employees who make malicious or threatening posts, or reveal the employer’s confidential information, are not protected from termination.

Why Has it Become a Big Deal?

Many people assume that because there is a privacy setting on their social media account that this means their profile is completely private to the public. In a sense, it can be; but in the reality of the workplace, it just simply is not as private as one might think. People tend to use social media accounts as a sort of private diary that they can write all of their complaints on. Sure, complaining on social media can potentially get you validation from ‘friends’ online, but it can also potentially get you into serious legal troubles within the workplace if the misuse turns into a serious offense such as bullying or harassment. Many coworkers like to create friendships outside of the workplace, but it seems best to be sure that this excludes members of management or anyone that may be above your employment level. This is to ensure that things remain fair in the workplace as well as being sure that you are not bringing your bosses into your personal social media accounts.

The Rise of Social Media

Social media certainly has its place and benefits in terms of marketing strategies for a company within the workplace. Business professionals tend to check social media accounts more regularly when attempting to connect with prospects and customers as well as network with other companies and professionals. This rise of social media use can also allow companies to give real time feedback to customers’ comments, questions or concerns about the company and its products or services.

Employers are More Active

Employees tend to spend about an hour each work day on their personal social media accounts. Due to this activity, employees can potentially waste valuable work hours each week and not accomplish all of their daily work activities. Not being able to finish a task on the job due to social media use can become a big problem for the company itself. This can lead to social media accounts being monitored more closely by the employer. An employer is strongly advised to have a social media policy put into place before they can monitor a personal account of an employee. This must include what technology they are prohibited to use social media on, if any technology is provided by the company itself along with what can and cannot be posted on these accounts. If an employee is in charge of posting on a company owned or branded account, it is important that managers monitor what exactly is being posted on the account. If an employee has a personal social media account it is important that the employee understand that if it used on company technology, it is possible that the employer may request to check the account if necessary.

Key Issues You Should Consider

Allowing social media use within the workplace can be a good idea to some, but it can cause more harm than good. If a strict social media use policy is not put into place, employees can take advantage of how they use their personal accounts and what they say about the company to the public. Potential harassment liabilities can come into play, and the lines of discipline and/or termination can become blurry to the employer.

Is Social Media Private?

People assume that because their social media accounts are used solely for friends and family this means that their account is considered private. They have their settings on ‘friends only’ and that makes their personal thoughts and activities a private event. This is an incredibly wrong way to look at any social media account. Although one can have potential control over what can be viewed publicly, that is not always the case. Once a post is shared, it can be seen by thousands of people by your friends sharing the post, to their friends sharing the post and so on. If an inappropriate comment is posted that goes against company policy, this can be grounds for discipline or termination if it is brought to the employer’s attention.

When is Social Media Activity a Valid Ground for Termination?

Grounds of reasonable termination due to misuse of social media can become blurry within the workplace if not well defined. As in many cases, employees have attempted to plead that they are practicing their rights to freedom of speech. However, with proper social media policies put into place, the final say can be left with the company. In situations where only one employee has posted something inappropriate or defaming on their private account and it is seen by the employer, this can be grounds for termination depending on how foul the comment was and what it pertains to. If an employee had gotten together with fellow coworkers on social media, to discuss a problem that they are encountering within the workplace, and other employees follow their lead in opinion constructively, this would not be grounds for termination (provided that the post is not malicious or harassing)because it is a concern of more than one person within the company. Grounds for termination are always a case by case situation.

When is a Dismissal Too Harsh?

Any termination from the workplace can seem harsh to the person being terminated. If a company feels that social media misconduct has been performed by an employee they have a right to investigate the site and the situation to the fullest extent that the law and social media policy allow for. If the company’s brand, employer, or reputation are at risk due to the misconduct, this can be considered reasonable grounds for termination for that employee. It is important for employers and employees to stay up to date with the latest social media laws and policies that are put into place this way misconduct can be avoided.

Examples of Cases About Social Media & Disciplinary Outcomes

In a case regarding a former Liberty Mutual employee, Dan Grilo posted a tweet in relation to a fallen Navy SEAL who was honored by president Trump during his congressional address. Grilo’s tweet stated, “Sorry, Owens’ wife, you’re not helping yourself or your husband’s memory by standing there and clapping like an idiot. Trump just used you.” Although this tweet did not cause harm to anyone in the company itself, Grilo was terminated for not abiding by the company’s policy of sharing their values to the public eye and allowing his personal opinion to damage the way people see the employees of Liberty Mutual.

Lougheed Imports v. Local 1518 (2010)

In a case involving employees at West Coast Mazda, two employees and their employer became involved in serious accusations regarding social media misconduct. Two employees made Facebook postings which contained threats, made defamatory statements about a manager, and discouraged the public from patronizing the employer’s business. One of the employees removed his manager as a friend on Facebook, but the manager was able to view the posts through another employee who remained Facebook friends with the employee making inappropriate posts. The employer did not immediately discipline the employees, as it had never encountered a situation involving employees’ inappropriate Facebook use. After the employees were terminated, the employees’ union filed a complaint alleging that the terminations violated the Labor Relations Code. The employer prevailed, with the Board finding that the employees had no expectation of privacy in public Facebook posts, and that the posts were damaging to the employer’s business.

Credit Valley Hospital v. Canadian Union of Public Employees (2012)

Another case involving Credit Valley Hospital and Mr. Brathwaite, a former employee for Canadian Union of Public Employees, Mr. Brathwaite was discharged from his job after posting photos on his personal Facebook account of a death scene of the suicide of a 14-year-old boy. Two photos of the scene were posted on the account, one captioning that a 14-year-old had jumped to his death while the other one captioned that this is what he needed to now clean up. Once word got around that these photos were posted multiple hospital employees attempted to friend request him, but he did not accept.

When Brathwaite realized that his post was causing a lot of commotion he took them down, but not fast enough for the situation to become a serious investigation of culpable misconduct. Braithwaite signed an agreement form to assure that he follows company policy. Company policy included that any employee respects the confidentiality of any information pertaining to any patient or staff member which he had violated by uploading these photos. Further investigation took place, including other witnesses and employees to determine whether or not these posts were meant to be malicious. It was concluded that this is cause for reasonable discharge as Brathwaite lied to authorities on multiple occasions about posting the photos and what the captions included. It was determined that he had violated not only company policy by posting online material that may damage the company’s reputation but also violated his agreement with the hospital to respect the confidentiality of each individual patient.

Social Media and Termination Best Practices

To successfully put social media rules and regulations into place, it is best to have a clear social media policy within the workplace. It is important to not only have this policy but to make sure that someone is monitoring that each individual employee is following these guidelines. With more and more states passing laws that allow employees to have and maintain their own accounts without employers being able to request them to release information, it can get tricky as to what an employer can expect on their employees’ personal accounts. If a policy is set into place and misconduct occurs, then it can be possible to have grounds for termination if any part of the policy was not followed properly. However, it is important to make sure that especially while on the clock, not only are the negative posts being monitored but any employee that is simply using social media while on the clock is being monitored. This makes any misconduct against the policy fair to everyone within the company.

Five Key Components of Your Social Media Policy

When creating a social media policy, it is important to include specific rules that way the employee knows exactly what constitutes misconduct. Below we will discuss five of the most important components you want to include in your policy to be sure the company remains successful.

Official and Personal Social Media Accounts

Within the company policy it is important to distinguish rules and regulations that pertain to individual accounts versus company owned accounts. If the company has its own social media account or someone appointed to create and maintain these accounts, policies should be put into place about what can be posted on that page. Most employees will have their own personal social media accounts as well and a separate policy should be created for what can be posted and shared on those accounts as well. Although everyone has a right to their own privacy within their social media accounts, having regulations in place as to what can be shared on a personal account is imperative in assuring that there is no ambiguity when it comes to online harassment or misconduct occurring that can potentially damage the company.

Regulating What Employees Say

Controlling what people say on their social media accounts may seem tricky, but as long as the company policy provides set guidelines, following the rules can be very simple. Most company policies require that employees do not post confidential work related material or material that reflects negatively on the employer’s business on their personal accounts. While it is  obvious that any company would not want their employees to bring down the company name with derogatory or damaging posts, , employees’ posts also have to reflect the values of the company itself. If a company feels that comments that are posted on a personal account can affect the way people view the company that they work for, this can be grounds for disciplinary action to be taken if described clearly in the company social media policy. It is important to let employees know that what they think and say, even on the Internet, does matter.

Confidential Information

When putting confidentiality requirements into a social media policy it is important to be very specific. Let employees know exactly what qualifies as confidential information and inform them of what is not appropriate to post or discuss via social media. The NLRB has found that in regard to confidentiality, employees are in fact allowed to discuss financial situations with one another, including via social media, such as salaries and/or bonuses.

Investigation Process

In case of any social media misuse, an investigation process should always be included within the policy. Allowing the employees to be aware of what can occur if rules are not abided by will help further deter any misconduct within the workplace and on any personal accounts that an employee may have. Staying up to date on social media laws is important to keep each company policy updated accordingly.

Clear Penalties

When social media misconduct occurs, employees should be aware of what possible disciplinary actions may follow. Included within the guidelines for what can and cannot be shared, should also be the corresponding penalties, not only to enforce these rules but to allow the employee to know exactly what the repercussions will be.

Conclusion

The key to avoiding termination of an employee for improper use of social media is to have a well educated business and a social media policy that clearly outlines the do’s and don’ts and the penalties for transgressions. Having these discussions regularly in your organization, keeping up with regulations and subsequently maintaining an up-to-date social media policy will collectively breed an environment where there are no surprises when it comes to expectations of social media use in and out of the workplace as an employee of your organization.

 

This blog post is intended for informational purposes only and does not constitute legal advice.  No attorney-client relationship is created between the author and reader of this blog post, and its content should not be relied upon as legal advice.  Readers are urged to consult legal counsel when seeking legal advice.

 

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