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Can You Punish Employees For Things They Say on Facebook?

A Commentary By Cliff Ennico

Tuesday, July 12, 2011

"I run a small advertising agency with about 10 employees. Given the nature of our work, our employees spend much of their time online, especially on the social media websites including Facebook, Twitter and LinkedIn. We have found these websites a tremendous source of revenue, as all of our clients are looking to develop advertising strategies for these sites.

"So it came as a shock when I looked at an employee's Facebook page -- she had posted pictures of her new baby and I wanted to congratulate her -- and saw several of her postings saying what an impossible boss I was. In one posting, I was described as a 'witch' and how unreasonable my demands on her time were in light of her new baby. She also went on to describe, in considerable detail, some of the projects that she was working on in our office, including some information that I felt was confidential to our client.

"In looking further into this, I learned that at least some of these postings were made from one of our office computers, during the workday when this employee should have been working on client projects.

"Needless to say, I am furious about this and want to bring it up with my employee. But I want to make sure that I am on solid legal grounds before I do anything. Any thoughts?"

Congratulations!  You have stumbled into probably THE hottest issue in labor and employment law right now.

As you correctly point out, the proliferation of social media websites, such as Facebook, are a double-edged sword: They are a great way to obtain information about someone easily and at low cost, but they create huge opportunities for abuse both by employers and employees.

It is tempting, EXTREMELY tempting, to discipline this employee for her online remarks, which clearly are not consistent with the "duty of loyalty" any employee owes to her employer. But before you take any action, you need to talk to an employment law specialist, as the (extremely few) courts that have addressed this problem have taken the employee's side.

A number of state and federal laws prohibit employers from monitoring their employees' online behavior and/or making use of information obtained from that monitoring to discipline employees. For example:

-- The federal National Labor Relations Act affords both nonunion and unionized employees the right to engage in protected "concerted activity," which includes the right to criticize their employers and to discuss their discontents with co-workers and outsiders.

--  Federal and state "whistle-blower" laws may protect employees who complain about working conditions affecting public health and safety or violating federal antifraud laws.

-- Federal privacy protections may extend to Facebook postings made from your employee's personal computer or e-mail account (as opposed from the employer's computer or e-mail account, which is a "gray area" in the law right now).

-- Many states prohibit employers from regulating employee political activities and affiliations or influencing employees' political activities.

-- At least four states (California, Colorado, North Dakota and New York) prohibit employers from taking adverse employment action against an employee or applicant based on legal off-duty activities. For example, an individual over 21 years of age who posts pictures of himself intoxicated at a party, and sometimes illegal off-duty activities -- the same individual smoking marijuana.

In this case, there's also the chance that any action against this employee will be viewed as discrimination against her because of her "new Mom" status.

The right way to proceed here is for your agency to adopt a "social media policy." Circulate it to all your employees and then schedule an "all hands" meeting to review the policy. Provide specific examples of prohibited behavior, at which you will state clearly that employees should review all of their social media pages and "scrub" any improper information -- especially any information about a particular client project, which could expose your agency to legal liability.

Your social media policy should:

-- Warn employees that they will be disciplined, and possibly fired, if they post proprietary and confidential company or client information, or make discriminatory or defamatory statements or sexual innuendos about the agency, co-workers, management, customers or vendors. Sorry, but the "witch" comment probably won't be enough.

-- Advise employees that any blogs or social media postings must include a disclaimer that "any opinions expressed are the employee's own and do not represent the company's positions, strategies or opinions."

-- Remind employees to conduct themselves professional both on and off duty.

For a sample "social media policy" used by larger companies, see http://humanresources.about.com/od/policysamplesb/a/blogging_policy.htm. As federal and state laws are "all over the place" on this issue right now, I would recommend you hire an employment law specialist to draft your policy (and perhaps also sit in on the employee meeting). Most attorneys will charge between $1,000 and $2,000 for this service, and it's well worth the expense.

Cliff Ennico (crennico@gmail.com) is a syndicated columnist, author and former host of the PBS television series "Money Hunt." This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state.

COPYRIGHT 2011 CLIFFORD R. ENNICO.

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