ANALYSIS: Check Social Media Policy Before You #FireYourEmployee

Employers should consider more than potential embarrassment when an employee posts a problematic TikTok video or fires off an ill-advised tweet. Having a carefully written and thoughtfully enforced policy in place can make the difference between a minor annoyance and a legal headache.

Last week, at the Annual Meeting of the Association of Corporate Counsel, I was a participant in "#WeGotFiredForThis,” a panel discussion on best practices for addressing workers’ social media posts. Here are a few brief takeaways from our discussion:

Restrictions on employee social media use involve state and federal legal considerations. Both federal and state laws may affect the use of social media in the workplace, according to panelist Christine Binotti, lead counsel for Motorola Solutions Inc. Employers should closely consider whether their policies affect activity protected by federal labor and privacy statutes or violate applicable state laws such as those concerning salary transparency.

A well-crafted social media policy considers all of the issues affecting the workplace. It is vital to carefully draft a policy that clearly defines “social media”, the type of company information that may be shared, and the consequences for violations. As Maureen Hopbell, lead counsel for FedEx Ground Package System Inc., explained, many social media posts may also violate other policies, such as the employer’s prohibitions on drugs, alcohol, and workplace violence.

Mistakes concerning the enforcement of the policy will invite litigation. Sometimes, the consequences of taking ill-advised action against the employee may be limited to negative publicity for the employer. However, failure to thoughtfully enforce a policy may also invite claims alleging everything from discrimination under Title VII to retaliation. Employers should be even-handed in the enforcement of their policies and maintain thorough records of their grounds for taking any disciplinary action against the employee.

Keeping up with a constantly evolving social media landscape requires employers and their counsel to stay on top of all of the legal and reputational considerations affecting their workplace policies. Before you #FireYourEmployee, consider whether your social media policy has covered all of the potential pitfalls and whether termination is even worth the potential repercussions.

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