July 3, 2020—In 2020, it's imperative for businesses to have a social media policy, as highlighted in a recent San Diego Union-Tribune article.
The article notes that anything posted by a business's employee can spread like wildfire on the Internet. Next thing you know, your business could have some troubling reviews on websites like Yelp or Google.
As noted in a recent National Law Review web post, although employees are generally posting on their personal social media pages and are often doing so outside of work time, coworkers and even community members are increasingly complaining about offensive comments employees are posting on various social media platforms. While sometimes the conduct is so severe that employers can easily determine the appropriate consequences, in other cases employers must balance a variety of legal requirements, employee and public relations concerns.
Consider the following legal issues—and the specific factors that must be considered and weighed by employers—regarding employee social media posts, as noted by the Union-Tribune:
- An at-will employee is at the greatest risk of losing their job, without legal recourse, when they send an offensive, legally unprotected message through their employer's electronic communications system during work hours.
- It is where an employer terminates an employee for posting comments on the employee's personal social media account—on the employee's own time, on a matter unrelated to work—that the employer faces the greatest legal risk. For example, California law prohibits employers from punishing an employee for engaging in lawful, off-duty conduct; hateful or otherwise offensive speech without more is not unlawful though it may be criminal conduct where the speaker intends to threaten or intimidate the target of the speech because of the target's race or other protected characteristic.
The solution seems fairly clear: businesses need to have clear, detailed social media policies, now more than ever.