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Can you punish an employee for a social media post?

Social media continues to be a problem for employers because it's difficult what the rules are when an employee goes rogue and either fires off a blast about the company itself or violates a morality clause by posting a joke that simply reeks of racism.

If an employee makes a social media post that crosses a company line, there are essentially two things you have to ask yourself before you can take action:

  1. Was the employee's post a protected activity?
  2. Did you have legitimate access to the material?

The answers dictate how safe you are -- legally -- to impose appropriate discipline.

What counts as protected activity?

The first question is important because employers frequently run into a wall when an employee gripes about company conditions, the pay, the hours or poor management and tags fellow employees. Even if those fellow employees don't respond, that can be viewed as an attempt to discuss the need to improve working conditions -- which is a protected activity.

Complaints about an activity that's a violation of the law or discrimination are also protected -- if an employee takes to social media to complain that an employer discriminates against women, for example, firing her would be an act of retaliation.

What counts as legitimate access?

The second question is important because you can't punish an employee for content you peeked at illegally.

What is legally obtained content? Anything that was stored on the company's computer system -- which means that a private email with a racist joke is open to discipline if it was sent through the company's server.

You also have the right to view content that is freely shared with you -- so if the employee "friends" you on Facebook, whatever he or she posts is freely shared with you. (Just make sure that you aren't obligating employees to put you on their friend list and that you let them approach you with the friend request, to stay on safe legal ground.)

You're also able to act on something that was freely shared second-hand. In other words, if that racist email went out from the employee's home computer to another employee and the employee forwarded it to you -- that's legitimate acquisition on your part.

As always, the best way to protect yourself from employment litigation is to keep in regular contact with your business attorney.

Source: The Business Journals, "How to discipline for social media post without getting sued," Katie Loehrke, accessed Oct. 12, 2017

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