Your employees are regularly posting on social media sites. Much of what they post is their own personal business, but what happens when they delve into the third rail of conversation: Politics and Religion? There are other topics too that should be avoided and when those get raised these online discussions can reflect negatively on the company.
Employees may say things that are offensive to others in the workplace. The social media posts may not be directed at these other employees; however, other employees may be online friends with their coworkers and therefore see the posts. If employees take offense to another’s post about race, religion, politics, or other topics, they may view this as creating a hostile work environment. The references may not have been made at work nor directed at anyone at work, but others know that that the coworker holds offensive views and may seek to avoid interacting with him/her as a result.
Recently, an employer was confronted with an employee who posted on her FaceBook page that she thought “Black Lives Matter” to be “racist,” believed the BLM movement “caused segregation,” and asserted that Black citizens were “killing themselves.” The employee’s profile clearly indicated where she worked and her position. The company was faced with the challenge of what needed to be done regarding it as the company perceived these posts to be contrary to its principals.
If you had an employee who posted on FaceBook statements that you found offensive or contrary to your company’s principals what would you do? What can you do? Would you consider the employee posts as potentially creating a hostile work environment or would your employees perceive it that way?
The first thing to determine is always, what is the company’s policy? Does it have a social media policy? What does the social media policy say about engaging with others on controversial topics or posting what can be perceived as offensive material? What does it say regarding reference to the company and making statements that may be attributed to the company?
As a private business, you are not restricted in taking action based upon an employee’s speech. The free speech provisions of the United States and New Jersey constitutions apply to “state actors” not private businesses, like yours. As a result, when you find out about posts that may be offensive to you or others in your company, you can require them to remove the post. You can also terminate the employee for having posted the material. Yes, an employee can be terminated for posting statements that may be part of the current events dialogue, but are nonetheless offensive to others – even if there are some who agree with the statements. This is exactly what happened to the AtlantiCare Medical System employee who posted about BLM.
There are limits, however. You cannot take any adverse action against an employee who posts about compensation or working conditions. This is considered protected speech.
Nonetheless, prior to taking any action, you should ensure your social media policy is up to date. You should review how you are applying the policy. Prior to taking any action, it is recommended that you consult with an attorney, such as those at Trimboli & Prusinowski to ensure that there are not other issues that may arise by taking action against an employee for their social media activities.
The attorneys at Trimboli & Prusinowski are experienced in drafting and applying social media policies as well as engaging with employees who violate the policies. Contact an attorney to assist in ensuring that your company’s policies are up to date and enforceable today. See related article on How Independent Contractors Can Kill Your Business ABC Test – Part A
