When Your Reputation is On[the]line

Harassment. Threats. Conflicts of interest. Privacy. Organizations learned to manage these issues before the explosion of social media. However, the ease of use, global reach, and permanence of online communications pose additional challenges. And when these behaviors occur as part of the employment relationship, there can be unique legal issues, as well. There are some tactics employers may consider to deal with and help prevent online attacks. Consider these questions recently posed by our members:

How do I respond to an employee’s negative workplace posts on Facebook?

If you become aware that an employee has complained about workplace harassment or discrimination on social media, you should respond just as if the conversation had occurred in the physical workplace. However, if the posts are more general complaints about your organization, you have limited options when posted on a personal social media account. Employers should avoid broad restrictions covering all discussions of your organization or even all employees’ use of company logos and branding. Guidelines concerning employee statements posted on personal social media posts should be narrowly tailored to protect confidential company information, trade secrets, and proprietary information. Social media guidelines that seek to control the substance of employee statements or to protect the “reputation” of the company, supervisors, or managers risk potentially violating the National Labor Relations Act (NLRA).

Many employers do not think they need to be concerned about the NLRA because they do not have unions in their workplaces. While much of the NLRA deals with how employers communicate with unionized employees, Section 7 also protects employees in non-unionized workplaces when they engage in protected and concerted activity for mutual aid and protection. For example, employees are permitted to discuss with other employees and outside individuals issues concerning terms and conditions of employment, including wages, hours, and working conditions. While the NLRA doesn’t apply to the public sector, these employers must take First Amendment considerations into account before placing restrictions on employee use of social media.

In addition to the NLRA, Colorado is one of five states—California, Louisiana, New York, and North Dakota are the others—that protect employees from retaliation for engaging in lawful off-duty conduct and political activities, no matter how distasteful their colleagues may consider their affiliations. Colorado has an exception to this requirement when there is, or appears to be, a conflict of interest with any responsibilities an employee has to the employer.

I believe that a current employee is posting anonymous threats online. What can I do?

With appropriate technology policies, employers may require employees to turn over laptops or other electronic devices for inspection and imaging upon request. Forensic examination may reveal emails or texts (even if deleted), including the dates and times the device was used to visit specific websites or create a personal email account to send or post those threats.

Taking Action

When considering discipline or terminating an employee for use of social media, employers should consider both the practical risks and consequences of such an action. Aside from the legal issues potentially associated with the decision, the employee may now be motivated to attack the employer even more. This could result in further damage to the employer.

Employees can be axed for engaging in hate speech and making disparaging comments about protected categories of race, religion and gender. They can also be shown the door for disclosing confidential information and trade secrets, defaming competitors, or misrepresenting the company.

In some circumstances, such as threats of violence, it may be appropriate to involve law enforcement

An Ounce of Prevention

What can you do to prevent these situations from happening in your workplace? Employees are less likely to engage in disruptive online behaviors if you have credible problem-solving procedures and promptly address employee concerns. Create a culture so employees will find negative use of social media to be unnecessary. Supervisors, managers, and Human Resources should be receptive to complaints, and investigate and resolve them in a timely manner. Frustration with inaction, perception of unfairness, not being heard, or taken seriously drives employees to online outlets (or outside agencies) to seek resolution.

Next, inform employees what is acceptable and what is not, before an issue arises. Let your employees know that social networking sites are not the ideal place to make a complaint regarding alleged discrimination, unlawful harassment, or safety issues. Communicate that complaints regarding these issues must be made consistent with your defined processes, so that the organization can address them.

Set expectations for use of your communication systems at work and off-site. These expectations should clearly delineate between appropriate work-related use and personal use of technology.

Remind employees of the consequences of using work accounts to violate the company’s anti-harassment and anti-violence policies and codes of conduct.

Disseminate harassment prevention policies that include descriptions of prohibited behavior

Notify employees that laptops and other electronic devices are subject to inspection and search.

Don’t go looking for trouble: the risks of scrutinizing employees’ comments on their personal websites, blogs, and social media accounts outweigh any benefits. If an employee mentions a medical condition, pregnancy, or disability that they have not disclosed and is then terminated or laid off, they could claim they were subject to discriminatory treatment as a member of a protected class.

Please see our Employee Handbook Planning Guide for sample guidelines on Communications Systems-Technology, Inspection and Search, and Employee Use of Social Media, and contact an Employers Council attorney for additional guidance. The law on social media is developing at such a fast rate that we advise employers not to implement a guideline without first speaking to an Employers Council attorney or other legal counsel.