You’re a good employer and a responsible business, and you always put your employees first. But that doesn’t necessarily mean your employees will see it that way, especially when a poor performer has a bad outcome or gets terminated. And the way of the world these days is a quick trip to a social media app to vent. But that can be disastrous, or at least embarrassing.
So, what can you do about it? You might want to immediately discipline or terminate the employee or send a cease and desist letter to a former employee – but talk to a lawyer before you act. Taking these actions could get into legal hot water.
Whether an employer can take action depends on a lot of factors, including what the employee said, what device they were using, and when they did it. But New York and federal law have limits on when you can discipline, terminate, or take action against a former employee.
For example, New York Labor Law 201-d prohibits discrimination or retaliation for an employee’s lawful participation of a “recreational activity.” That is defined as a “leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Talking on social media likely is covered.
Under the federal National Labor Relations Act (NLRA), an employer’s policies or actions may be unlawful when they interfere with the rights of employees to discuss wages, working conditions, or terms of their employment with co-workers.
An employer violating New York Labor Law 201-d could face a civil lawsuit and violating the NLRA can result in charges at the National Labor Relations Board. Both are a costly endeavor.
So, what can an employer do?
- Have a strong, legally compliant Social Media Policy.
- Prohibit access to social media on company issued devices.
- Limit access to social media during working hours.
- Forbid sharing of private information like protected health information, personally-identifiable information, threats, discriminatory conduct, and other legally-prohibited conduct.
- Write a strong, legally compliant Confidentiality Policy and policy for the protection of trade secrets.
Of course, these areas are thorny, and you should have an experienced employment lawyer write your new policies, review your existing policies, and guide you through employee misconduct issues. Call The Coppola Firm at any time to help with these issues. We’re here to help.
