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Social media utilized in employment disputes?

September 15, 2016

By Heather Nezich, courtesy of SBAM Approved Partner ASE

We’ve all heard about people utilizing sites like Yelp to vent or praise businesses or to rate employers.  But what happens when a current or ex-employee raises an HR issue via a social media site?  Should you respond?

Employment lawyers say yes. Oddly enough, Yelp recently had this situation on their hands as an employer.  An employee utilized the blogging platform to dispute the way she was fired from Yelp.  She titled her post “Yelp Fired a Single Mother Today: Me.” Yelp chose to respond by tweeting out the real reason for letting her go.  They stated absenteeism as the reason and said that she had received several warnings.  The employee then responded to their tweet with a request to see these warnings.  Does this qualify as a valid request that HR needs to respond to?  Wouldn’t it be more appropriate for her to make a formal request via email or phone?  Unfortunately society today relies heavily on social media and seems to thrive on the public shaming aspect of it.  It’s something that HR much monitor carefully.

Not responding at all might have seemed like a reasonable response for Yelp in this situation, but lawyers say determining the correct response to an employee issue on social media is more complicated.  On the other hand, Yelp may have made a mistake by responding publicly to the employee’s claims.  The company wanted to correct what it claimed was false information presented by an employee, so it tweeted out its reasons for the dismissal. But lawyers have said using Twitter to publicly divulge details about alleged absenteeism and discipline potentially exposed the company to lawsuits. A better option for Yelp, or any company in this position, would be to simply state that false information had been shared and then follow up privately.

Employment lawyer Jonathan Segal of Philadelphia firm Duane Morris says employers generally can’t avoid social media. He advises them to “go in with your eyes open and understand when the engagement begins, you can’t necessarily end it.”  You cannot “unsee” what you see on social media.  The fact that Yelp responded to her via Twitter proves that they are reading her posts.  The employee claimed her request was a valid one, and Yelp cannot deny seeing the request.  They will indeed need to provide her with the written warnings they claim to have made.

HR and social media can be a bad mix.  Take this for example – Segal recalls a case where a manager noticed on a social media site that an employee was struggling with an emotional condition. The manager commented on the post, asking if the employee was feeling better. The employee replied no. At that point the manager did not engage further with the employee via social media.  But now what?  He’s now been made aware that the employee has an emotional issue that could possibly qualify under the Americans with Disabilities Act.  “If the manager, say, disciplined the employee or fired the employee due to performance that could be attributed in some way to the condition, this could open the manager or employer up to accusations of violating the Americans With Disabilities Act,” Segal says.

Another area to be careful of is endorsing employees on LinkedIn.  Endorsements can be helpful to employees when searching for a new position.  But just be sure your endorsement matches previous performance reviews.  If you gave an employee a bad performance review and later terminated that employee, it would contradict those actions if you then gave them a glowing recommendation on LinkedIn.  This could open you up for a wrongful termination claim.

Employers publically dealing with employee disputes should send an email or memo to employees, explaining that it will not respond to human resource requests that have been broadcast over social media.  Perhaps consider placing a statement such as this in your handbook to avoid a public dispute to begin with.  Otherwise, you risk allowing a precedent for communication over public, nonwork-related social media channels.

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