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Private employer rights to censure employee on-line speech

October 18, 2017

By Michael Burns, courtesy of SBAM Approved Partner ASE

Employers are more and more often pushed into situations where an employee’s speech online negatively impacts an organization’s business. Employers spend large amounts of money trying to project a positive public image and brand of the company and then without expectation, an employee “publishes” something that makes the organization look like it fosters and supports social misfits, to put it kindly. Employers must prepare to take action should an employee publish a volatile statement that social media at large picks up on and tries to shine the light of shame on the employee and whomever they engage with – including their employer. 

Most employers today have a social media policy. If not, they should have. This policy outlines the employer’s do’s and don’ts for employees when they communicate through social media on the internet. The policy sets forth employer expectations, what is inappropriate, and what consequences may occur should an employee’s conduct violate the policy. However, employers must be careful not to restrict employees’ labor rights. The National Labor Relations Board (NLRB) has found employer policies that unduly restrict employee speech that addresses wages, benefits, and terms and conditions of employment as protected speech.  A copy of the NLRB’s recommended policy can be found here.

In addition to a clear social media policy, other policies should be in place to allow an employer’s redress and coordinate the employer’s rights to take action against inappropriate postings that negatively impact the employer. There are many in the legal community that do not have the highest confidence in at-will policies anymore. Posting this policy as not effective at protecting an employer. But an at-will policy that is well communicated on the employment application, handbook, offer letters, and/or employment agreements states an employee’s work status may be terminated with or without notice and with or without cause. This policy gives the employer a broader basis to legally terminate an employee and minimize legal liability risks.  Marc Bernstein, Partner at Paul Hasting’s in New York, advises this policy can clear the way (legally speaking) in many circumstances and permit the employer to terminate an employment for “damaging, embarrassing, or harm[ing]” the company and its reputation.  

But having a sound policy and a legal basis for taking action is only part of the program. Employers need to educate employees on the policy and what it means. If communicating company policy is not done right, it may result in push back from employees that argue they have a right to say what they want on their own time. At this point an employer will have to diplomatically state that statements made on Facebook, Twitter, and other internet media is not generally protected when their employment is with a private company. Regardless of the fact that the employee may even smartly disclaim in their post that a statement made on their Facebook page is theirs alone and does not reflect or tie to anyone else, they need to understand this can still impact the employer and can lead to disciplinary action against them.

So now employers are unfortunately responsible for employees’ “private” communications that are made on the internet. Not a fair position to be in for either side. But when an errant statement made on the internet becomes a lightning rod for negative employer publicity and community/customer relations, the company has to be prepared to respond or possibly face an onslaught of negative publicity that affects the company along with the employee that made the poorly considered social media post. 

Danielle Hagon, SVP at Nahigian Strategies LLC, advises employers to determine response strategies in advance and states, “The speed and accuracy of a response, especially to a comment that could be viewed as offensive or could negatively affect the company, are vital for brand reputation and management to combat any false narratives that may emerge.” If a company does not respond effectively to a crisis, they can look at long-term reputation issues or even brand ramifications moving forward.” And that she concludes, “obviously means more time and money being spent” or lost.

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