In the midst of news about charges of promoting hate speech and engaging in censorship aimed at Internet giants Twitter, Facebook and Google, employers are asking how to protect themselves from the potential liability created by employees’ social media postings.
Attorneys with the law firm of Ogletree Deakins argue that employers should act now. “In most cases, employers can take actions against their employees’ racist off-duty conduct, and employers may need to do so to avoid legal liability and, probably more importantly, to maintain a culture of inclusion.”
Employees often believe their statements are protected under the Constitution’s First Amendment, but in fact it only prohibits the federal government from interfering with freedom of speech – it does not guarantee that right in other settings, including private workplaces.
A private-sector employee’s comments, whether made in person or on social media, are not shielded from employment consequences under First Amendment, which is true even when the offending remarks are posted away from the workplace.
State laws vary. California, Colorado, Louisiana, New York and North Dakota prohibit employers from retaliating against employees for any off-duty lawful activity, including speech.
However, in those states, online attacks on persons’ immutable characteristics protected by law (such as age, race, ethnicity, sex and religion) or that is seen as workplace harassment, are not protected.
Keep in mind that employee discussions of wages and working conditions are protected by federal labor law, but even in this context workers cannot get away with bigotry or threatening speech.
The attorneys urge employers to consider adopting social media use policies to address inappropriate and offensive conduct. For example, you can tell
employees that their personal social media accounts, online networking accounts, blogs and
other online communications may be reviewed, and any inappropriate or offensive content could subject them to discipline up to and including termination.
Employers may want to explain in the policy what types of content could create problems, including harassing and bullying behavior, or discriminatory or offensive language.
Problematic use of social media also can be defined to include online conduct that might be associated with the company or that could potentially cause interpersonal problems with other employees in the workplace, according to the Ogletree Deakins attorneys
Other actions employers may consider including in company communications can reiterate the company’s core values serving as a guide to which behaviors violate organizational principles.
“Remind employees of the avenues to report inappropriate conduct when they experience or learn of it,” the lawyers add.
Many companies already have issued public statements reinforcing their commitments to tolerance, diversity, social justice and anti-racism, they observe, noting that companies are allowed to enact policies, procedures and training requirements to ensure that their actions are consistent with the values expressed.
Also make sure to promptly investigate any reports of potentially problematic social media posts or other conduct. “As with all employment policies, employers can face liability if they do not enforce their social media use policies consistently,” the attorneys stress.
“If employees are treated differently for the same or similar conduct without legitimate non-discriminatory explanations, employers may face a risk of employment discrimination claims.”
