Social Media: A Cautionary Tale Courtesy of ESPN

by Derek Ross

The recent news regarding ESPN sports anchor Jemele Hill is a reminder to employers to be cautious when disciplining employees for voicing opinions outside of the workplace.

Last week Ms. Hill made controversial tweets about President Trump, calling him a “white supremacist” on Twitter. Ms. Hill later issued a statement expressing regret that her personal beliefs had painted ESPN in an unfair light and that she continues to respect her colleagues and her company.

ESPN received backlash for not suspending or firing the sports anchor for her comments given the fact that the company has fired sports personalities in the past over social media comments. For instance, former ESPN employee Curt Schilling was terminated after sharing a lewd picture criticizing the controversial North Carolina “Bathroom Bill” barring transgender people from bathrooms and locker rooms that do not match the gender on their birth certificates. This was not the only violation that Schilling had committed and was the justification for his dismissal. After terminating Mr. Schilling, ESPN assured fans that “ESPN is an inclusive company”. This was Jemele Hill’s first offense.

Late last week, ESPN’s President John Skipper issued a statement that said, “We have social media policies which require people to understand that social platforms are public and their comments on them will reflect on ESPN. At a minimum, comments should not be inflammatory or personal.” Mr. Skipper also said it was a “violation of standards” and that the matter was dealt with privately.

It is yet to be seen if the social media uproar will affect ESPN’s business or ratings but this is likely not the coverage that ESPN would like to see at the forefront of many news casts.

Social media outlets are becoming more and more popular for employees as a place to say whatever they like, whenever they like — with or without consequences looming. From a business standpoint, social media can be one of the most powerful marketing tools in your arsenal. To protect your business, you should establish a social media policy. A carefully written, clearly communicated and consistently enforced social media policy will not only help you steer away from trouble, but it will help you navigate through a firestorm.

Here are a few steps I first shared in my February blog post “How to Help Your Company Avoid Social Media Messes”:

  1. First, employees need to know that they could be putting their jobs on the line if they post anything to social media, including pictures or videos of the workplace, if those postings are unlawful, include discriminatory or abusive language, are maliciously false, or violate company policies such as Anti-Harassment or Confidential Information.
  2. You can also require that your employees make it clear in their social media activity that they are speaking on their own behalf and not on behalf of the Company and that any statements made about the Company or any other employees must be truthful and accurate.
  3. Supervisors need to be trained to proceed with caution when dealing with social media issues. If confronted with a public relations nightmare created by an employee using social media, make sure the company’s response is appropriate. Organizations may be ordered to provide back pay and reinstatement if it is determined that the employee was wrongfully terminated. It is best to check with an HR professional to assess whether a specific posting is protected by law.

Remember that the National Labor Relations Board (NLRB) is very particular about these policies. Avoid any language that could be interpreted as an attempt to limit an employee’s protected right to “concerted activity”. In other words, avoid broad language that is too restrictive. It also helps to include a disclaimer stating that the policy is not intended to restrict communications or actions protected or required by state or federal law.

Be extremely careful when you consider firing an employee over social media post. Courts have found that social media violations constituted a legitimate, nondiscriminatory reason for firing an employee. Past decisions by the NLRB hold employers liable for terminating employees related to social media if the actions are related to protected concerted activity under the National Labor Relations Act. The NLRB has made a point of protecting employees who discuss their working conditions, complaints and terms of their employment with other employees through social media. So before you consider disciplinary action or termination of an employee for a social media posting you may want to check with your legal counsel regarding the following concerns:

  • Did the employee make complaints or threats against customers?
  • Was there harassing speech against a co-worker?
  • Was confidential information discussed or information about the company or client relationships or other information that may harm the company’s reputation in the marketplace?

One more caveat regarding social media. Employers who use social media in hiring process decisions must be aware of the risk involved. Federal and state laws generally prohibit discriminatory hiring decisions based on protected categories such as race, color, religion and sex. The danger of conducting background checks of applicants using social media is that you may discover the applicant belongs to a protected category—information you probably wouldn’t learn through your general application process.

The Fair Credit Reporting Act (FCRA) governs “employment background checks for the purposes of hiring” and applies if “an employer uses a third-party screening company to prepare the check.” Under the law, if you use an outside service to view social networking sites and provide information, the applicant must be informed of the investigation, given an opportunity to consent and notified if the report is used to make an adverse decision. If you decide to use social networking information in your hiring decision, you may want to think about conducting that yourself, not through a third party. That avoids claims under the FCRA.

If you are an employer in need assistance, East Coast Risk Management can help with creating a social media policy or revising your current policy. Please contact our HR team by calling 724-864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

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