Pub. 1 2012 Issue 2

Fall Issue 2012 19 RULE #7: If The Posted Email Or Tweet Involves Harassment Of An Employee Or An Actual Threat, Deal With It Promptly Your company’s policy against harassment should explicitly cover all forms of harassment including electronic harassment. Therefore, if you learn that an employee has posted or emailed offensive comments or materials which would violate your no- harassment policy if done face-to-face or at work, then you need to address it as you would any other incident or allegation of harassment. It doesn’t matter that the harassing comment or post was made at home on a personal computer and after hours. The only issue is: did the post or email violate the Company’s policy? Of course, before initiating an investigation, you will want to see the actual post or a printed copy. Be careful: harassment must be based on an employee’s race, sex, age, national origin, religion, etc. Rude remarks that do not implicate one of these bases is not “legal” harassment, but still should be addressed. Most companies have policies against violence and threats. A threat made via social media is no different than a threat made face-to- face. Therefore, if you have seen the actual post or a printed copy and are convinced that a real threat has been made, then you should take appropriate action. RULE #8: Watch Out For Retaliation Retaliation is taking any kind of material adverse action against a sub- ordinate because he or she engaged in“protected conduct.”This kind of protected conduct is broader than that under the NLRA, because it does not have to be“concerted.”So a single employee who posts a complaint about discrimination by a supervisor has engaged in protected conduct. Similarly, a single employee who claims that he was not paid for all his hours has engaged in protected conduct. Such complaints, posted for all to see on Facebook, can certainly be embarrassing to a supervisor or manager. However, you may not take any adverse action against the employee as a result of the “protected” complaint. In addition, if you do discipline or terminate the employee following such a posting, you can expect a retaliation claim. So you will want to make sure that you can prove to a jury’s satisfaction that the employee would still have been terminated even if he or she had not made the post. RULE #9: If It Does Not Have A Tangible Impact On The Workplace, Forget About It Most employees feel that what they do on their own time is not their employer’s business. And that is generally true so long as that off-duty conduct does not later impact theworkplace. So if two employees don’t like eachother andelect to sendeachother insultingemails or posts, it really is of no concern to their employer. After all, we can’tmake people like eachother. But if the two employees come to work and continue to insult each other in the workplace or act in a disruptivemanner or refuse towork with one another, then a manager needs to step in and address the problem, even if it means terminating both employees. But you should wait to get involved until the problem manifests itself at work. One exception to this is threats. Even if a threat is made off premises and after hours, it still violates most employers’policies. Therefore threats of any kind should be promptly addressed. RULE #10: Ensure That Your Employees Understand The Company’s Expectations Many employees still believe that if they are not at work and not using the company’s computers, they are free to say and do anything they want on the internet or on their Facebook page. Of course, that is not true. Therefore, it is important that companies adopt a social media policy that lets employees know that there are limits to what they can say and do after hours. Be sure to make clear that your no-harassment policy and your threats-and-violence policy apply to social media, as well as your policy concerning the safeguarding of customer information. Most employees understand that their employer has a legitimate interest in protecting this information and will have no problem complying once it has been brought to their attention. As you can see, the rules regarding employee use of social media are complicated and seemingly conflicting in many ways. Because there are so many different scenarios that can arise, it is difficult to cover them all. The bottom line is that even though most employees are employed “at will,” managers or supervisors must still understand that there are limits on what they can do in response to an employee’s social media communication. That means that every manager should proceed cautiously and seek advice before taking disciplinary action based on an employee’s social media activity. For more information or answers to questions about social media and the workplace, contact Chris Hoffmann at 858-597-9600 or at choffmann@ laborlawyers.com .