It’s no secret that during the 2016 campaign, political candidates harnessed the power of social media more than ever before. It is also no secret that the President of the United States has continued to use social media as a political forum. With tech-savvy Millennials in the workforce and now Generation Z (those born in 1995 or later) on their heels, the lines between “personal” and “professional” have become increasingly blurred online. A rise in the popularity of political discussion on social media could pose potential problems for employers, even outside of the political arena and election season. As a result, employers would do well to maintain certain policies and practices to ensure that employees are not harassing one another, or that no trade secrets or brand negativity are publicly shared. However, protecting each employee’s rights can be difficult, especially when they directly conflict with one another.
1. Employers Should Not Interfere with an Employee’s Rights.
Generally, for an at-will employee, an employer may impose discipline for any off-duty conduct as long as the conduct is not protected. Rights that are frequently at issue when dealing with social media are the right to engage in concerted activities and protection from discrimination. Employees may have more protection if they are subject to a collective bargaining agreement or an employment contract with a just-cause provision.
One of the biggest areas of concern for employers is making sure they don’t take actions that would interfere with an employee’s right “to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection” – a protection afforded under Section 7 of the National Labor Relations Act (“NLRA”). A “protected concerted activity” is generally an activity undertaken together by two or more employees, or by one on behalf of others, “when they seek to improve terms and condition of employment or otherwise improve their lot as employees….” (CITE) An employer violates an employee’s rights if it maintains workplace rules that would reasonably tend to “chill employees in the exercise of their Section 7 rights.” (CITE)
Labor law protections are primarily for employees to talk about issues within the workplace, like complaining about a supervisor, but there can be overlap with politics. For example, if an employee in Minnesota were to talk about the recent minimum wage increase on social media, that would be an example of where politics mixes with work-related issues. That type of posting could still be considered “protected concerted activity under the NLRA.”
Another concern for employers is an employee’s protection from discrimination. Minnesota is one of about half of the states that have laws protecting employees from discrimination based on political activity. Specifically, Minnesota Statute § 10A.36 states:
An individual or association must not engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment. An individual or association that violates this section is guilty of a gross misdemeanor.
As such, an employer must be very careful when an employee’s social media posts include information that would identify the employee’s political contributions or activity. An employer must not discipline or terminate an employee based upon political affiliations.
2. Employers Should Ensure Social Media Posts Do Not Interfere With the Employers’ Policies or Interests.
Another concern for employers is making sure the employer’s own policies are not being violated or its interests affected negatively by an employee’s social media posts. Employers need to not only look out for their own interests, but also to protect the rights and interests of other employees. This is not always easy. For example, most employers have policies against, and laws prohibit, harassment in the workplace. But, what if a post includes political activity that is protected by § 10A.36 but also harasses other employees?
For example, if an employee endorses President Donald Trump’s travel ban on social media, some question might be: “Is he or she making comments expressly or by way of inference that could be perceived as anti-Muslim, and what is the impact of those comments in the workplace? Would this be considered harassment? Is this a declaration of political activity that is protected by Minnesota Statute § 10A.36?”
Employers should review each post separately to determine whether it violates the employer’s own policies or reflects negatively on the employer’s brand. Employers should also be aware of activities taking place at work. Obviously, an employer should investigate and, if necessary, act on any complaints of harassment or discrimination in the workplace. But an employer should also pay attention to the activities by employees in the workplace to make sure attitudes and opinions that are posted on social media do not affect other employees and the workplace.
3. Employers Should Educate Employees Regarding Social Media Use.
Employers have more latitude to regulate their employee’s social media use while they are in the workplace than when employees are off duty. Most employers allow incidental personal use of social media while employees are on the job. However, the postings could extend to political-related postings. Employers then wrestle with how to respond to these postings by employees.
4. Employers Should Implement a Social Media Policy
To protect the rights of employees and employers as mentioned above, and many more that we don’t have space to go into, employers should institute a workplace social media policy as part of their employee handbook and human resources training efforts. In fact, two separate social media policies may be necessary; one for the employee’s personal social media accounts and one for corporate social media accounts. The policies should give employees an understanding of what they are allowed to post and what is off-limits.
The social media policy should allow the employer to maintain discretion to discipline an employee for any unprotected conduct. Some items to put into a social media policy may include:
- Employer reserves the right to monitor employee’s posts and to intervene if an employee’s private activity could violate the rights of the employer or other employees or negatively affect the image of the employer.
- Prohibition against disclosing any proprietary information.
- An exception for Section 7 conduct under the NLRA.
5. Train Employees On Social Media Issues.
In addition to implementing a social media policy, employers should give employees of examples of social media posts that could be a problem, thus potentially getting them to think twice before sharing a picture or statement that could potentially relate to or reflect on their work. Employees should be reminded that they are all ambassadors of the employer’s brand and their posts reflect on both them and their employer.
Legally, employees have freedom of speech to post whatever they choose on their personal social media channels. However, freedom of speech protection only goes so far. Employees should be reminded that whatever is put on social media is sent to everyone, including their boss. So whatever an employee posts on social media represents that employee’s professional brand. If an employer cannot say it to his boss, he should not post it on social media. Taking this one step further, employees should be told harassment or discrimination of coworkers on social media may also be a violation of another employee’s rights and not tolerated.
Employers should also encourage employees to bring workplace complaints and conflicts to the attention of the company directly. Doing so will allow the employer to evaluate and address the complaint or conflict.
Social media is not going away. Employers who are proactive in implementing policies and educating their employees of the potential issues relating to social media posts and their employment may be able to avoid facing legal issues or even a public relations nightmare.
This information is general in nature and should not be construed for tax or legal advice.