Dealing with Employees’ Online Behavior

We have all read stories of someone’s unacceptable or illegal actions going viral and the public using social media to identify that person and where they work and live. While we normally think of social media as a personal pastime, social media can be a valuable resource for business purposes. And, employee behavior on social media can also have a significant negative impact on your business’s reputation and livelihood. 

Since this use of social media represents the company directly, you must take extra precautions when allowing someone to post on behalf of the company. Specifically:

• Make sure that only authorized employees are allowed to post on behalf of the company and have control of the company’s social media accounts. Require employees to provide current user names and passwords to management and IT for monitoring. Train these employees on proper communication skills and how to maximize the impact on the platforms. Ensure that they are regularly trained on non-discrimination and are up-to-date on acceptable and unacceptable language and imagery.
• Suggest employees who are expected to use social media for business purposes maintain a separate and distinct personal account for their personal use. If the business account is in the company’s name, then that stays with the company if the employee leaves.
• Require senior management’s approval before posting anything of significance such as a new initiative. However, require multiple people (preferably with diverse backgrounds and perspectives) to review the posting or concept first to be more likely to catch offensive or problematic issues before they are made public. Be sure employees feel free to come forward with their concerns.

Personal Use of Social Media

An employee’s personal use of social media is often used to connect with friends and family, to find items of interest, forward information they find important, and convey their own thoughts, opinions, and experiences. Because these personal views can impact your business, it is important to know what employers can and cannot do.

What you can do:

• Prohibit the employee’s use of social media during working hours to avoid impacts on productivity and to limit connection with the company. However, you cannot restrict an employee from using social media during non-work time such as during meal or rest breaks.
• You may be able to prohibit employees from using company resources (computers / tablets) for social media only if you prohibit all other personal use. You must apply this policy across the board and discipline employees equally for the personal use of company resources.

What you cannot do:

• If an employee’s posts relate to the working conditions for themselves or others, they have more freedoms. Under the National Labor Relations Act (NLRA), all employees have the right to protected concerted activity (PCA) such as complaining about low wages, sub-par work conditions, or poor management. Whistleblower and public policy laws protect employees who use social media to shed light on a company’s illegal or unethical actions. Typically, as long as the posts do not violate other policies such as confidentiality, non-discrimination / harassment / sexual harassment, code of ethics / conduct, they are legal.
• In states that have off-duty conduct protection laws, an employee cannot be disciplined for posting about something they did off-hours as long as it is legal.

What about Freedom of Speech?

Employees and employers need to know that, in most workplaces, there is no freedom of speech at work or when using social media. Unless protected as mentioned previously, employees can be held accountable for their words, actions, or behaviors which are deemed unacceptable or that violate company policy. 

Policies to implement:

To allow your company to take action when necessary, you should implement and consistently enforce the following policies:

• Use of Social Media: Include who can post on behalf of the company; when employees can use social media and when they cannot; and that any posts whether for the company or personal cannot violate other policies, including those below.

• Code of Ethics / Conduct: Define what behavior is so unacceptable that the company will take immediate and serious disciplinary action or termination.
• Anti-discrimination, harassment, sexual harassment, retaliation policies: Make sure these policies are worded to cover social media posts.
• Workplace violence: Ensure employees know that any threats made during or outside of work are unacceptable, including those made via social media.
• Confidentiality / Trade secrets: Define what is and isn’t considered confidential information and reference an employee’s right to PCA and the company’s rights under the Defend Trade Secrets Act.
• Outside Inquiries: Define who can speak on behalf of the company when giving professional references or making comments.

• Searches: Clearly state that an employee has no right to privacy for anything posted using company resources, even on deleted activity.
• Employment-at-will: State that the company or the employee can end the employment relationship at any time, for any reason, with or without cause or notice. This gives you more freedom to take action on any unacceptable behavior.

Practices to establish:

Since social media can start outside of the workplace but still create explosive situations, you should preemptively create procedures of what actions you will take if an employee:

• uses social media during work hours, regardless of what they use it for.
• posts using their company-issued computer.
• complains about their wages or management.

• uploads a controversial thought or comment.
• verbally attacks another employee.
• threatens violence at the workplace or against a manager.

Some scenarios:

What should you do if the following happens?

• Employee posts discriminatory comments: If they are targeting an employee, client, or vendor, you must investigate and take appropriate disciplinary action. Even if they are only general comments but another employee is offended, you should give a warning.
• Employee posts about how much he earns or that he thinks his boss is an idiot: This is probably protected under the NLRA so you cannot take disciplinary action. However, you may consider talking to the employee to find out why they are dissatisfied.
• Employee calls in sick but posts pictures at a baseball game: While watching a baseball game is harmless, the fact the employee lied about why they took time off may be something you want to reprimand to ensure it does not happen again.
• Employee is tagged in a picture showing her smoking marijuana: If the behavior is illegal, you may be able to discipline. However, if it is legal in your state for recreational or medical purposes, you probably cannot take any action, especially if your state has a protection of off-duty activity law.
• Employee posts pictures from being part of a violent protest / looting: If the behavior is illegal, you can probably take action and discipline or fire the employee since it can impact your company’s reputation and business.

The use, impact, and repercussions of social media are limitless so you must have some structure in place to be ready to address whatever may happen. This is a changing topic and laws vary across states.  If you are considering implementing or updating your social media policy, we can help!  Check out our full range of compliance services.  Our Affinity HR Support Plan is a great option that saves you 20% off handbook services and also helps you stay on top of regulatory changes and HR documentation.

Paige McAllister is vice president of Affinity HR Group, Inc., BSCAI’s affiliated human resources partner.  Affinity HR Group specializes in providing human resources assistance to associations such as BSCAI and their member companies.  To learn more, visit www.affinityhrgroup.com/bigIhires.