Can Online Behavior Serve as Grounds for Termination?

The bombs people drop on social media can detonate right away or lurk like hidden land mines. In some cases, someone is terminated from a current job for recent problematic posts. Take comedian Roseanne Barr, for example, whose tweet this spring  referring to Valerie Jarrett was deemed racist and deleted immediately, but ABC executives still dropped her from her sitcom.

Or take Kenneth Storey, a University of Tampa visiting assistant professor who lost his job days after his tweet last summer suggested that the Texas victims of Hurricane Harvey were experiencing “instant karma” for voting Republican. Storey deleted his tweet, but not before a screenshot of it had gone viral. 

In other instances, individuals lose a job for social media posts they made long before their employment began. That’s what happened to “Guardians of the Galaxy” director James Gunn, who was fired in July after comments he wrote on Twitter several years ago involving pedophilia and rape resurfaced. Even though Gunn said he regretted his words, it wasn’t enough to save his job.

When an employee posts something offensive, HR professionals are often on the front line of protecting the employer’s brand. Hiring managers also may be expected to act as defenders of the company if a candidate’s online posts have the potential to reflect poorly on the organization’s image.

Attorney Eric Meyer, who blogs about workplace issues, tracks news about employees whose offensive social media comments cause them to lose their jobs. He and other experts believe that this type of termination is becoming increasingly common. 

“A firefighter, for example, who puts out a racist meme … CEOs, public figures, you name it. The frequency with which I see incidents of people getting fired doesn’t seem to have declined. I don’t see any evidence that it’s getting corrected anytime soon,” says Meyer, a partner at FisherBroyles in Philadelphia.

Adding pressure to HR’s role is the ubiquity of social media and the speed at which comments can erupt into full-blown crises. “Sometimes, it’s not even a 24-hour news cycle anymore—it’s a 15-minute one,” says Betty Lochner, an HR consultant and owner of Cornerstone Coaching and Training in Olympia, Wash. “If you jump in there and get involved in a conversation that would’ve petered out on its own, that isn’t the best response either.”

But doing nothing may not be a viable option when business leaders are subject to intense pressure to terminate an employee who’s behaving badly. Determining how to respond is no easy task. HR professionals and executives must weigh the potential damage to a company’s image and reputation against their desire to foster a supportive workforce that doesn’t micromanage workers’ actions. 

Ultimately, business leadership must determine which behaviors cross the line. That evaluation process could begin whenever an employer learns about a potentially problematic post. “There’s not a cutoff or a statute of limitations for information,” says Jeff Polsky, an employment lawyer with Fox Rothschild in San Francisco.

Crossing the Line

The Internet has obscured the boundaries between people’s personal and professional lives, as more workers friend and follow their colleagues. The result is that employees may become privy to details about their co-workers’ off-duty activities, including their political affiliation, religious beliefs, drug use or participation in controversial causes, that otherwise would’ve remained private. 

“Social media has opened the door for us to know people’s intimate views on things that are not work-related,” says Joey Kolasinsky, SHRM-SCP, HR manager at Encore Electric Inc. in Denver. 

As people conduct more business and socializing online, Facebook and Twitter have become 21st century watercoolers, where workers flock to grouse, joke and vent. “These are conversations that previously would have happened in someone’s home or in a bar or on a soccer field, and it would have gone under the radar,” says attorney John Polson, a partner with Fisher Phillips in Irvine, Calif. 

But in today’s hyperconnected culture, an online comment or photo can spread like wildfire from one co-worker to another and then to multitudes of strangers. 

In the early days of social media, business leaders thought they could keep tight control over workers’ use of the platforms. Less than a decade ago, many companies introduced policies forbidding workers from making any negative comments online about the employer, says attorney Mark F. Kluger. Some employers even required workers to supply the passwords to their personal social media accounts—a practice that is now illegal in some states. 

But starting around 2010, the National Labor Relations Board (NLRB) began fielding complaints from workers who had been disciplined for their online behavior. The NLRB warned employers that their social media policies could not punish workers for discussing wages, working conditions and terms of employment, all of which are considered “protected concerted activity.” That can include complaints about management, low wages and lazy colleagues, and those protections extend to nonunionized workers as well. 

In addition, five states—California, Colorado, Louisiana, New York and North Dakota—protect employees from retaliation for engaging in lawful off-duty conduct and political activities, no matter how distasteful their colleagues may consider their affiliations. “If any companies in those states were to terminate an employee because they were a member of the Nazi Party, they might have a problem,” says Kluger, an attorney with Kluger Healey in Florham Park, N.J. 

Workers can, however, 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 general, though, a business has great latitude in deciding whether to terminate for online behavior. 

“It is entirely case by case,” Lochner says. “A company has to decide: What’s its reach? What’s the damage? There is no black-and-white answer.”

Don’t wait until a crisis erupts to decide which types of off-duty conduct are unacceptable. HR professionals, company leaders and other decision-makers should agree on a list of core company values so that they will know which behaviors violate organizational principles, Lochner says.

Setting A Policy

A social media policy and related training can help employees better understand the importance of demonstrating professionalism online and provide guidance on what types of online conduct may lead to termination. The HR team at ad agency RPA in Santa Monica, Calif., provides its 750 employees with a company policy and training on managing perceptions in the workplace. A recent session covered how offhand online remarks can affect someone’s image and reputation. 

“We try to offer employees tools for understanding the implications of something you might express in the social space,” says Laura Small, vice president, director of people, at RPA. The training was especially well-received by recent college graduates, who had little prior instruction on the business etiquette of social media, despite being avid users of the technology.

When employees misstep, the gaffes are usually due to what Small describes as “a lack of awareness” as opposed to malice. In one case, an employee saw a negative comment a colleague made online about the services of one of their company’s clients. The two employees were Facebook friends, and the content appeared on a personal page. The colleague contacted Small, who met with the person who made the post and explained why it was inappropriate. Mortified, the worker apologized. “We don’t want to kill free speech, but we want to be respectful of the clients we represent,” Small says.

​Even a comprehensive social media policy cannot anticipate every instance where it might be applied. “There’s no one-size-fits-all,” Polson says. “You need a policy tailored to your specific business. And you don’t want to be too broad; you don’t have to have a policy for every decision you make.”

An effective and comprehensive social media policy should be included in your employee handbook. The policy should ask employees to:

• Refrain from identifying themselves as representing their employer and/or their employer’s views unless they are authorized to do so. 
• Preface their opinions about their industry, employer or work duties with a disclaimer stating that their views do not necessarily represent their employer’s. 
• Avoid sharing any proprietary or confidential information about the company or its customers, prospects, partners or suppliers.
• Never post anything threatening, harassing, bullying or defamatory or that could contribute to a hostile work environment by disparaging others based on race, gender, disability, religion and any status protected by law or company policy.

5 Employee Handbook Updates to Watch in 2018

When was the last time the company handbook was reviewed? It’s a worthy priority for the new year—or anytime, really. Handbooks are living documents that should be reviewed regularly, especially considering the federal government’s focus on deregulation and ever-changing updates from state legislatures and municipalities. Here are five key issues that may trigger updates:

1. Workplace conduct and social media

Under former President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that may limit workers’ rights. For example, in many cases the board considered employee social media posts that are critical of employers a form of protected concerted activity and thus not necessarily grounds for disciplinary action. 

With the Trump administration, the pendulum may swing the opposite way, giving employers more leeway to develop workplace conduct rules, said Bruce Sarchet, an attorney with Littler in Sacramento.

Already, the board overruled its previous standard that struck down policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. “With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis. In the meantime, make sure your handbook’s conduct guidelines are specific and clear. 

2. Sexual harassment 

May 2013 Monthly Topic- Social Media, Negligent Retention, and HCR

The topic for this month covers various ares including Social Media policies/Considerations, Negligent Retention, and updates on Health Care Reform.

 

To Friend or Not to Friend?: What is your company’s current policy with regard to Social Media site and managers being “friends” with subordinates? What are the pitfalls of being “friends” with your employees

 

Contact us today for more information on this topic.

Transparency is a Must in the Electronic Age

The infamous internal memo concerning eliminating telework at Yahoo was never intended for public release. At the top of the memo the call for privacy was clearly defined as “Proprietary and Confidential Information- Do Not Forward”. However, despite Yahoo’s directive, the memo was leaked on a blog post on February 22, 2013. This leak resulted in a lot of online attention – most of it bad. But it is not the first time a firm’s information has been leaked online and it will not be the last.

 

Recently, a Groupon CEO tweeted “I was fired today”. As a British entertainment retailer was announcing that it was laying off nearly 200 employees, a member of the company’s social media team took to Twitter and posted “We’re tweeting live from HR where we’re all being fired! Exciting!!”.

 

It is an aspect of the business world now. From layoffs to policy changes, decisions and information that was intended only for the eyes of your staff may actually be shared with the world via social media now.

 

The question- what is management to do?

 

Be Transparent and Proactive

 

To be transparent is to be clear and concise about expected or even suspected changes that have the potential to be controversial and could cause issues internally with your staff. Employer privacy is very limited and you can not realistically control what someone posts on their blog, Facebook, or Twitter account. Corporate bad news has a way of seeping into the limelight online.

 

“In the era of social medial and social sharing there’s almost no such thing as a truly internal e-mail announcement,” said Curtis Midkiff, director of social strategy and engagement at SHRM. “There are ways to share confidential information with your employees, but e-mail may not be the most appropriate because it is not a truly private form of communication. You can put as may disclaimers as you want, but when you push send…you always have to be prepared for it to fall in the wrong hands. You should almost pre plan that the e-mail may be seen by unintended audiences.”

 

One way to pre plan and be proactive is to break the news on social media sites yourself first. For example, Zappos CEO often tweets memos to employees from his Zappos Twitter account. He did so a few years ago when the company announced layoffs.

 

Another good rule of thumb? Try to limit surprises by including workers in decision early on, if at all possible. There are different obligations depending on if the company is a public or privately held company, but the more input that employees feel they have the better they will handle change in the long run.

 

Companies can try to soften the blow of bad news by keeping employees in the loop and telling them that change is coming. They can educate their employees on the process so that when the memo actually comes out, they are expecting it and do not freak out and leak it online.

 

Bad news is never good news and you can strive to be as transparent as possible with information. However, business leaders often have to make difficult and unpopular decisions and it can, in the end, become difficult to manage the emotions or reaction of one employee.