Connecticut Employment Law Blog Insight on Labor & Employment Developments for Connecticut Businesses

Should You Fire Employees Who Use (or Misuse, However Defined) Social Media?

Posted in Highlight, Human Resources (HR) Compliance, Social Media

A few days ago, The New York Times, ran a series of short essays from people on its “Room for Debate” page. The question it posed? “Should employers get tough with strict policies about social media activity, so that employees face consequences at work for what they say online?”

Standing on a soapbox

Not surprisingly, the opinion’s ranged from the “What you do or say on the Internet is none of your boss’s business except in the rare case where it affects the company” to “Absolutely, employees should face consequences at work for what they say on social media – sometimes”.

You will notice, of course, what these seemingly opposite statements have in common — the exception. 

That is, you should or shouldn’t take action — except when it matters.  Defining “when it matters” though is the tricky part.

For a hospital or financial services company, it may matter a lot more given how regulated those industries are. 

Indeed, the SEC issued guidance last week on how social media should be used in compliance with Regulation FD.  And last fall I highlighted the issue when some analysts were fired for disclosing insider information on Facebook. 

For a small company with a client base that isn’t tech-dependent, it may matter a lot less. 

The problem, of course, is still answering the question of “Does it really matter what the employee does online all the time?”

I would suggest, as I have before, that there is just not a one-size-fits-all answer to this.  Social media continues to go through “growing pains.” And companies need to figure out if the “punishment” fits the supposed “crime” online. 

What’s an employer to do if it hasn’t figured this out yet?

I’ll use what I said over a year ago:

Social media does not mean you have to throw out your existing rules. The rules on confidentiality, or anti-discrimination, for example, still apply on the online world. Employers just need to understand that they what happens in the workplace isn’t necessarily staying in the workplace anymore.

  • RyanMorse

    Dan: 

    It does matter and under certain circumstances the employer should be able to terminate for online activity. The internet never forgets, and inappropriate postings can wreak havoc in the workplace. From the plaintiff’s side, I regularly counsel clients on the necessity of online etiquette regarding their opinions / disclosures regarding their employer / employees and other work related issues. That advice usually boils down to: if you can’t speak of it in front of your mother or at church, or you would not want your mother to see what you did on the weekends, or if it is in any way interpreted as gossip, then it does not belong on a facebook post. Most employees “get” that trade secrets / work products are not to be discussed unless approved. Many have a hard time understanding that there is such a thing as “too much sharing.” I’ve had quite few cases where bad conduct has been exacerbated by after-hours facebook postings on both sides. 

    I agree with you on that their is no one size fits all solution. It is a case by case determination. Ideally, the employer’s social media policy is tied to a handbook disparagement clause, for example “any social media posting that disparages the business integrity of the Company, its parent, etc, or officers, directors, employees, customers, and materially and/or adversely affects the Company’s business reputation.” Second, I’ve noticed some employers request their employees not identify their employer on Facebook. That is not a bad idea in my mind either. The handbook policy on harassment must also include references to social media. 

    Whether the termination is lawful or not (remembering the NLRB decisions regarding protected activity), the employee is still going to have his/her life disrupted for some time. Its an area where is common sense is truly lacking. 

  • http://zagaja.com/ Matt Zagaja

    Good post on this. I think employers that want to retain and recruit the best talent should generally have an active presence in social media because many people of our age do and it sends a signal that they are open to innovation. Some people my age do not care about social media and their employers have more rigorous policies: a friend at a large firm was instructed (or at least encouraged) to delete his facebook profile during on-boarding. I probably would not accept an offer from a firm that had such a strict policy. If I had offers from two firms and one was involved in social media (or had attorneys that are, like you) and one wasn’t, I’d probably go with the firm active in it, even if pay was a little less.

    While I’ve used it long enough to feel comfortable with certain boundaries that I have established, others may not be as judicious and it would probably help new employees to have a conversation about it, even if it’s not a formal policy. Employers have quite the opportunity to help employees develop their professional reputations through it similar to how they might send them to conferences, etc. and maybe gain some “free” advertising in the process. However there are also dangers, and everyone is better off if the tripwires are avoided.

  • http://www.stateprocessserving.com/ Joey B

    If employees are going to be stupid and post illegal/unprofessional photos/content to Social Media sites they deserve to be fired.  I’m sure on their personal profile, it mentions the company they work for so in a way the company is linked to this negative content