A Clear Social Media Policy is Your Best Defense

Someone recently compared posting gripes on social media sites to standing on a street corner with a sign in hand, shouting for all to hear. No matter how private you may think those postings are – they’re NOT.

Case(s) in point . . . have you seen these actual headlines recently?

  • Massachusetts: High School Teacher Loses Job Over Facebook Posting  . . . She was fired after posting comments calling the residents of her school district “arrogant and snobby” and calling all students “germ bags”).
  • North Carolina: Facebook Post Costs Waitress Her Job  . . . After a couple lingered over a three-hour lunch, forcing her to work past quitting time, she aired her frustrations on Facebook. Maybe if she hadn’t mentioned the name of the restaurant and called the customers “cheap”??
  • New Jersey: Teacher Loses Her Tenured Job over Facebook Posting  . . . This first grade teacher wrote that she was a “warden for future criminals”, upsetting parents who saw the post.
  • New Mexico: Police Officers Could Lose Jobs Over Facebook  . . . Several officers posted “inappropriate content” on websites such as Facebook and MySpace. One listed his occupation as “human waste disposal,” while another expressed happiness over the death of a prominent attorney. Among other things, this led to a “department special order” to all officers cautioning them that “speech, on or off duty, made pursuant to their official duties is not protected under the First Amendment and may be the basis for discipline if deemed detrimental to the department.”

This new world of social media has many users a bit confused over public vs. private and how their First Amendment rights fit into the picture. Though the First Amendment certainly prohibits government from infringing on citizens’ freedom of speech, it does NOT prevent private employers from limiting their employees’ “public” speech.

Despite these cases in which “personal” postings tripped legal snares, employers must proceed cautiously if they plan to terminate the tweeter. Many of these postings are protected by the NLRA, even if unions are not involved. In addition, some posted allegations may be covered by federal, state and local non-discrimination and whistleblower laws.

So what is best? There are many steps you can take to protect yourself and your employees. First, employees need to know that they could be putting their jobs on the line if they indulge in an electronic rant over work-related issues or people. The only way to ensure that understanding is with a Social Media policy that is carefully written, clearly communicated and consistently enforced.  This policy must not be so broad or restrictive as to infringe on Section 7 rights (established in the NLRA). Including specific examples of prohibited conduct may help define the boundaries more clearly.

Second, supervisors need to be trained to proceed with caution when dealing with social media issues. Best to check with an HR counselor to assess whether a specific posting is protected by law.

If you have any questions regarding Social Media policies or employment laws, please contact ECRM’s Human Resource Consultants for more information.

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