With approximately 3.6 billon people expressing themselves using social media platforms such as Facebook, Twitter, LinkedIn, YouTube, Instagram, and most recently, TikTok, employers have to ask themselves some important questions regarding their employees’ usage of these applications. Should employers set boundaries as to what they will or will not accept in their employees’ online posting activities? Can employers legally terminate an employee for something posted to their personal social media account?
ViacomCBS came face-to-face with these questions in July when the company cut ties with Nick Cannon after he made what the company called “hate speech”, including anti-Semitic theories, during a YouTube podcast not associated with ViacomCBS. Shortly after the podcast, the employer issued the following statement, in part:
“ViacomCBS condemns bigotry of any kind and we categorically denounce all forms of anti-Semitism. We have spoken with Nick Cannon about … his podcast … which promoted hateful speech and spread anti-Semitic conspiracy theories. While we support ongoing education and dialogue in the fight against bigotry, we are deeply troubled that Nick has failed to acknowledge or apologize for perpetuating anti-Semitism, and we are terminating our relationship with him.”
Deloitte, a Big Four accounting firm, recently faced a similar situation. The employer pulled a two-week summer internship offer made to Claira Janover, a Harvard graduate, after she posted an explicitly racist and threatening TikTok video, which went viral. Deloitte stated:
“Deloitte unequivocally stands against the legacy of systemic bias, racism, and unequal treatment that continues to plague our communities. We encourage and support our colleagues to speak out on these issues of critical importance to society, but our policies strictly prohibit invoking or threatening violence.”
You may recall the story of Justine Sacco, a 30-year-old senior director of corporate communications with IAC, who sent a racially offensive tweet before an international flight. When she turned on her phone after the flight, she found she was the No. 1 worldwide trend on Twitter as people were outraged by her offensive comment. She was terminated shortly after she landed. IAC issued a statement during the time she was unreachable:
“This is an outrageous, offensive comment that does not reflect the views and values of IAC. Unfortunately, the employee in question is unreachable on an international flight, but this is a very serious matter and we are taking appropriate action.”
Employees clearly have a right to online freedom of speech. However, in Florida, an employer can terminate an employee with or without cause, so long as the reason is not discriminatory.
Generally, an employer should not tolerate an employee’s postings that are egregiously offensive, discriminatory, violent, illegal, deliberately false or ridiculing of their employer, their products or services. An employer also should generally not tolerate employee social media activities that compromise or threaten their legitimate business interests. Employers can, and should, assess their employee’s social media activity in combination with their set policies and the potential risk to their business and reputation.
A separate social media policy, as most office policies are likely not expansive enough to cover this type of activity, can be especially important. Despite account privacy settings, many postings published online can be spread to the public. A good social media policy should not only advise employees that they are responsible for their postings, but that they must also:
- use good judgment,
- be professional,
- be accurate and honest,
- be responsible and respectful,
- refrain from engaging in inappropriate or unacceptable conduct,
- refrain from obscene, harassing, discriminatory, bigoted, pornographic and/or hateful conduct,
- refrain from divulging confidential, financial and trade secret employer information,
- refrain from representing themselves as a spokesperson for the employer, and
- refrain from using social media at work.
However, it is important to note that employees do have a right to engage in certain protected activities without an employer retaliating against them. The NLRB reports that an employer social media policy should not be so sweeping that it prohibit the kinds of activity protected by federal labor laws, such as the discussion of wages or working conditions among employees. In other words, an employee is generally permitted to discuss work-related issues, criticize their employer and share information about pay, benefits and working conditions while communicating with coworkers on social media.
With so many employees using social media, and given the current environment, now may be a good time to review or implement a social media policy. It is important to make sure that the policy provides the employer with the protection needed to enforce its current policies including anti-harassment, anti-discrimination, anti-violence and trade secret, but does not unlawfully prohibit employees from engaging in protected activities and freedom of speech. A good social media policy should advise employees that they will be held accountable for postings outside of the company’s values and policies up to and including termination.
*Special thanks to Lynn Derenthal, who assisted in the drafting of this post. Lynn is a Paralegal in our Fort Lauderdale office.