The internet is full of stories about people who have lost their jobs over social media posts. A few examples:
• A PR executive for a racist tweet sent just before she boarded a flight to South Africa. Among the responses she got upon landing was a notification from her manager informing her she’d been fired.
• A disgruntled customer service representative at Yelp who was let go after posting on Medium that her boss was responsible for her low pay.
• A York University professor who lost his job for resharing anti-Semitic posts on Facebook after being warned that they conflicted with university policy.
Under certain circumstances, employers are within their legal rights to let employees go for violations of social media rules, said Ian Kalmanowitz, an attorney with the Colorado Springs employment law firm Cornish and Dell’Olio.
“We recognize that employees have some privacy,” Kalmanowitz said. “We also have a state statute that prohibits firing employees for lawful off-duty activities. There are limits, though.”
Under Colorado’s statute, “an employer can terminate an employee if an action creates conflict or the appearance of conflict with the employee’s duties to the employer, or if the employer has a rule that applies to certain employees prohibiting certain off-duty conduct,” he said.
Revealing trade secrets is one area where employees can get in trouble if, for example, “you’re a developer for a tech company and you know what the new phone looks like, and your employer has a rule that doesn’t allow you to talk about new products.”
Another risky area is making disparaging remarks about your employer on social media.
“Say you work for a sports team,” Kalmanowitz said. “Your employer could have a rule that says you’re not allowed to do anything off duty that indicates you’re a fan of another team.”
Such rules must have to do with the employee’s duties.
“You can’t have a rule that says all management employees have to be Broncos fans if it doesn’t have anything to do with their job,” Kalmanowitz said.
If the employee of a car dealer posts a message that suggests people not buy cars from that dealer, “obviously that creates a conflict of interest, and the employee could be fired,” he said.
A tougher question is conduct that an employee might engage in that the employer finds objectionable.
Suppose the car dealer’s employee posts photos of herself partying, drinking and wearing a skimpy bathing suit.
“If there’s nothing to indicate that the person is an employee of that business, and the conduct isn’t related to the job or the business, that would limit the employer’s interest,” Kalmanowitz said. “But posting drug use on Facebook, I don’t think an employer would have any problem terminating an employee for that.”
The bottom line, he said, is that employees can’t be fired for posts that have no impact on their business, “the same way they should not be fired for how they vote, where and whether they go to church, or whom they choose to marry.”
MAINTAINING PRIVACY
Employers should be aware of another Colorado law, passed in 2013.
That law prohibits an employer from requiring employees or applicants to hand over their social media usernames and passwords or to change their privacy settings, Kalmanowitz said. It also prohibits employers from requiring an employee to “friend” the company or their boss.
“These laws are designed to give employees some degree of privacy while putting reasonable restrictions on social media use,” he said. “We live now with social media, and our expectations of privacy have changed. Aspects of your life are known to the world, or at least to your friends.
“What we see now is people who are prolific in their social media use, who live their lives in the public eye. They need to recognize that when you live your life that way, you lose your privacy, and problems could arise.”
Karole Campbell, owner of Madwoman Marketing Strategies, puts it this way: “If you wouldn’t say it to a client during a meeting, don’t post it on social media. If you’re interacting for your employer, think of being at a business mixer and how you would handle yourself in front of clients.”
Regarding an individual’s social media accounts, “you should not talk about anything confidential, or anything that could get an employer in trouble,” Campbell said. “I would argue that ‘I had a great day at work’ is your news to share, but their news doesn’t belong on your Facebook page. You have to consider that your audience is everyone you’re friends with and, depending on your privacy settings, everyone they’re friends with.”
DO YOU NEED A POLICY?
If you choose to have a social media policy, it should have two layers, Campbell says: “Here’s how you handle yourself professionally when speaking for the company, and what you can say relative to the company.”
Campbell suggests looking first at your overall communications, confidentiality and compliance policies, and applying them to social media.
Not everyone needs a formal, written social media policy, said Tom McClintock, owner of Relationship Martech. The company helps businesses use digital strategies to direct targeted messages to precise audiences.
“Social media is a very important part of organizing your overall marketing strategy,” McClintock said. “I use the analogy that social media is leveling the playing field; it allows a lot more expression, though not all is what a company would want, but that doesn’t make it a bad thing.”
Companies used to have what McClintock calls “the logo police — a very structured policy as to how you could get out any kind of messaging. Instead of having logo police, you need to be more of a sheriff who facilitates social media by teaching and helping employees post.”
Often this means not just restricting social media use but saying, “this is a tool, and this is what you can do with it.”
A social media policy may be a good way to do that, but that doesn’t mean every company needs to have a social media policy, McClintock said.
“It’s a question of how many employees you have and how much latitude you want to give them,” he said.
McClintock said in most cases of inappropriate posts, an employee has posted out of ignorance, an emotional incident or a lapse when drunk or high.
“The first thing to do is to come alongside the employee, not so much as logo police but as a sheriff to enforce common-sense principles about how to interact online,” he said. “It’s usually not going to be a continuing issue. If an employee has that big a problem with alcohol, there are probably a number of reasons why they’re not a good employee.”
For business owners who don’t have a social media policy but want to consider one, McClintock suggests looking online and downloading sample policies that work for them.
A SIMPLE SOCIAL MEDIA POLICY
An example of a simple but effective social media policy is the one in effect at El Paso County.
Dave Rose, chief public information officer, said the county’s policy consists of just two paragraphs:
“The online presence of employees reflects upon the county. Be aware that your actions, captured by social networking, social media, text messages, images, posts, blogs and/or comments can impact the public’s view of you and of the county and therefore your ability to effectively carry out the business of the county. Only employees officially designated may speak … on behalf of the county, post comments, text messages and the like… The following will not be tolerated and will subject the individual to discipline: proprietary and confidential information; harassing, discriminatory statements or sexual innuendos regarding coworkers, management, citizens or vendors; and defamatory statements regarding the county, citizens or vendors.
“Do not make comments or otherwise communicate about citizens, coworkers, supervisors, the county or vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous or discriminatory on the basis of age, race, religion, sex, sexual orientation, gene identification or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status or any other legally recognized protected basis under federal, state or local regulations or ordinances.”
