Top Ten Tips Disclaimer
A surprising number of employers report that employees have posted derogatory comments about their company or their job on the Internet, via Facebook, MySpace, or private blog sites, or else while using other media such as Twitter. Such conduct is becoming increasingly common with the advent of new technologies on the Internet. Unfortunately, while the technology has improved dramatically, there has been no corresponding upswing in common sense or decency in society. Thus, the loose and often intemperate comments that people used to share with each other over drinks are now freely posted online, with the employees sometimes completely unaware that their comments will become available worldwide and be archived on countless network servers across the globe.
Bringing to mind the old saying "fools' names and fools' faces often appear in public places," many examples have appeared in unemployment claims of how unwise use of social media by employees can get them in trouble. Here are a few of those cases:
An employee obtained permission for a two-week FMLA absence, but posted pictures on a social Web site that were taken during that time of herself and her boyfriend on a Caribbean cruise ship, as well as a running account of the good times she was having.
A golf resort employee used his company-issued "smart phone" to chat with friends and write about his low opinions of his boss. A printout of his chat records revealed that during one staff meeting, he posted comments on a social media site about how boring and useless the meeting was.
Another employee used a social media site to blog about how much she hated her supervisor and her job. Although she used a pseudonym, she could not resist the temptation to gradually come out with enough identifying information about herself, her boss, and her company to where it became clear who she was.
Another employee was found to have posted pictures on his social media page of himself and some non-employee buddies having a drunken good time in the employer's office, after hours, when the store was supposed to be completely closed.
The general principle here would be a restatement of the old wisdom that "your business ends where my nose begins", i.e., while it is true that a person's off-duty activities are a person's own affair, that works only as long as the person does not interfere with the rights of others. In an employment context, employees are free to do what they will in their own free time, as long as what they do does not adversely affect coworkers, the employer, or the employer's clients or customers.
However, recent guidance and rulings from the NLRB indicate that employers need to be careful about blanket prohibitions of discussing company business or their jobs online. That agency takes the position that the NLRA gives employees the right to discuss the terms and conditions of their employment together, even if they do it online on their own time. Although no courts have yet ruled on this specific issue, it seems clear that what was protected activity before the advent of social media (i.e., pay discussions, complaints about working conditions, and the like) remains protected even if it takes place online. Of course, not all online activity is protected. For example, an employee's "freedom" to disparage co-workers while off-duty should be limited by the co-workers' right to be free of a hostile work environment. Similarly, unauthorized disclosure of confidential information is not protected (aside from discussions of pay and benefits between employees). It is hard to define where that line is, but employees can and should be held accountable when they cross it. It is really no different from other forms of off-duty conduct that damage workplace relationships - courts have long held employers responsible if they fail to take effective action with respect to employees who commit illegal harassment against co-workers, whether the harassment occurs on- or off-duty. In general, a company has the right under Texas law to take action against an employee for off-duty conduct if such conduct has the effect of damaging company business (remember, though, the exception for NLRA-protected activity) or work relationships.
It would be a good idea to adopt clear, written policies on computer and Internet usage and on the use of social media by employees. Sample policies on those subjects appear in "The A-Z of Personnel Policies" section of this book.
Should your company adopt such a policy, all employees should sign for copies of the policy and be trained in what it means. If any employees refuse to acknowledge the policy, see "Refusal to Sign Policies or Warnings" for ideas on how to proceed.
In Texas, HB 2003 (effective September 1, 2009) amended the Texas Penal Code to add a new section 33.07, "Online Harassment", which created the following criminal offenses:
third-degree felony: using a fake name or identity to create a Web page or post one or more messages on a commercial social networking site without the other person's consent and "with the intent to harm, defraud, intimidate, or threaten any person";
class A misdemeanor: sending "an electronic mail, instant message, text message, or similar communication" referencing any identifying information of another person without that person's consent, with the intent of causing recipients of such a communication to believe that the other person sent or authorized it, and with the intent to harm or defraud any person. This offense would become a third-degree felony if the one committing the offense intends to solicit a response by emergency personnel.
For a sample policy regarding computer, e-mail, and Internet usage, click here.
For a sample policy regarding the use of social media, click here.
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