Social Media Use by Employees

Facebook. Twitter. Instagram. Youtube. It is likely that you, your children, your friends or your employees have “posted”, “tweeted”, “liked”, “commented” or “uploaded” at some point this year.

Although social media can be a fun and convenient way to interact with others, you should consider the following questions:

(1) Should I fire my employees for their off-site/off-duty social media posts that criticize my business or workplace or disparage other businesses or people;

(2) What are the risks of terminating my employees for their off-site/off-duty social media use; and

(3) What liability will I have for my employees’ off-site/off-duty social media posts?

You will also want to consider whether your employees’ off-site/off-duty social media postings are protected by the National Labor Relations Act (“NLRA”). For most NLRA cases involving terminations for social media use, the central question is whether the employee posted a personal complaint or gripe against his/her employer or whether the employee acted on behalf of the employee and others in complaining about the workplace. Even if the employee acted on the behalf of others, his/her social media post may not be protected if it was extreme or “went too far.” The National Labor Relations Board (“NLRB”) considers several factors in determining whether an employee’s comments were so “over the top” that they lost NLRA protection.

Given the diverse and widespread reach of social media and its powerful influence on people and businesses, you may want to incorporate a social media policy into your Employee Handbook. Additionally, you may want to provide definitions, examples, and other guidelines regarding the types or categories of social media conduct that your business prohibits. Having a social media policy is beneficial as it sets forth your expectations to your employees and acts as a reference point in the event you terminate an employee.

So what should you do? Before you watch another viral Youtube clip make sure to review your Employee Handbook and consult with an attorney to determine if your handbook has an appropriate social media policy.

We would be happy to sit down with you and help you determine what you can do to protect yourself given the social media craze and how the click of a button can negatively impact your business’s brand and image. Please contact us with any questions you may have.