Employees & Their Pesky Social Media

In my experience, giving the finger to the President of the United States isn’t the worse thing an employee has done on social media.  (Heck, I’ve helped fire people after Charlottesville if you catch my meaning.)  But, the incident of Juli Briskman, her middle digit, and the President’s motorcade illustrates the employer conundrum of employee social media.  Whether you love social media (me) or hate it (lots of people), it is now a factor of every day human resources.  We must deal with it.

Before getting to the meat of employee posts and pics, let’s get three things out of the way. First, employees have no First Amendment right to freedom of speech when working for a private employer.  If Mike declared his love for canned cheese at a dairy facility, Mike’s termination would be lawful. It doesn’t matter where Mike made the declaration – the factory floor or on Twitter – a private employer may take action.  It doesn’t matter that it was Mike’s personal opinion, an employer can simply not like the comment and terminate Mike lawfully.

Second, social media is a 24/7/365 after-work happy hour.  Social media is at work.  It’s used to connect employees, improve relationships with co-workers, and find out more about new job opportunities.  When folks use social media to share their political opinions, complain about a neighbor, or simply rant about a particular product, co-workers learn about these things.  Because we are so connected through social media, those rants, diatribes, or laudatory praise are seen and heard by co-workers just as if they were said at work or happy hour.  This means the post can affect the workplace, it does affect morale, and it can hurt the organization.  There is no “her Facebook is private” or “it was during her off time” argument when employees (or customers or clients) are connected to each other.  Social media is definitely not Vegas.

Third, when a post has to do with the employer itself, taking action gets tricky.  The National Labor Relations Act allows employees to discuss, complain, or rant about working conditions with each other.  They can do this on social media without fear of retaliation.  The rest of this post will deal with employee posts and pictures that have nothing to do with the employer.  If a post has to do with the employer, find your friendly neighborhood employment attorney.  Fast.

If employers can take action when an employee posts something they don’t like, the question then becomes should they.  Some – like the Charlottesville posts – are easy calls.  If someone posts something racist or sexist, the employee has got to go.  I often use the example of Justine Sacco.  Her tweet rightly got her fired, and nearly all of the HR pros, students, and business leaders I speak with agree.

Justine Sacco

However, when an employee posts something, many of the same HR pros, students, and business leaders get nervous.  I use the following hypothetical:

Mike has been a Manager for 11 years.  His work is well respected & his contributions to the company are immeasurable.  Erin is a new Assistant.  She got the job, because her friend, Joe, referred her.  Joe is connected on Facebook with Mike & Erin.

Erin shared a post from her friend criticizing the Women’s March, stating women & “the gays” already have equal rights.  Joe comments on the post that Erin is wrong.  Because Joe commented, Mike sees the post.  Mike is really, really upset.  Mike tells his manager about the post.

When I ask, “What would you do?,” the responses vary from “well, I guess I’d have to fire Erin” to “Couldn’t we just discipline her?”  Sometimes, the response is “Do nothing, an employee gets to be who she is outside of work.”  While this is admirable, it might not always be the best answer.  What if Mike threatens to leave the organization because of the post?  What if Erin rose through the ranks and started making hiring and firing decisions?  Couldn’t her post have an impact on hiring candidates from the LGBTQ community or her involvement in your diversity program?  This is where things get dicey, and employers have to think long and hard about what they are going to do with the Erins of the world.  The right answer will depend on the employer’s culture and tolerance of risk – both legal and reputational.

Here are some questions to ponder:

  • What has or will the effect on the workplace be? How much of disruption will this be?  How much will morale be affected?
  • If a manager made the post, what will the effect be on their employees? Will the post influence or have the appearance of influence over their ability to hire, manage, discipline, and fire employees?
  • Does the post conflict (directly or indirectly) with your mission, vision, or reputation?
  • Does the post violate a policy? For example, confidentiality or harassment policies could be implicated.
  • How many people outside the organization can see it? Will customers or clients see it?
  • If this was posted by a different employee, would we treat this differently?  Why?

These questions, along with all the other questions employers normally go through before disciplining or firing someone, are necessary.  Employers need to see the entire picture.

The next important consideration is consistency.  In the POTUS-middle-finger incident, Ms. Briskman’s employer claimed that her picture of her extending her digit towards the President was lewd and obscene.  Hence, her termination.  However, Ms. Briskman pointed to a “director’s” posting where he called an individual a “forking Libtard ascot” (Shout out to The Good Place.)  Arguably, this post is equally (if not more) obscene and lewd as Ms. Briskman’s finger, but the director was able to keep his job after removing the post.  And, arguably, if the only difference is that Ms. Briskman is a woman and the director is a white male, when then, Ms. Briskman could have a gender discrimination case.  This is exactly why consistency is key.  If you’re going to fire Ms. Briskman, you have to fire the director too.

My friend, Heather Bussing, jokes that you find out about employee bad behavior on social media just as fast as employees run to the cafeteria for free pizza.  It’s true.  When Janine does something controversial on social media, you find out about it quickly.  You may have to deal with it just as quickly.

Photo by Annie Spratt on Unsplash

Uff. Arbitration.

Occasionally, I get questions about arbitration.  Should we have arbitration agreements?  Why would we not?  Isn’t it cheaper?  Isn’t it quicker?  Isn’t it secret?  In theory, arbitration can be cheaper, quicker, and maybe even secret.  That said, in real life, arbitration isn’t any of these things to the people that matter – the employer, the employee, and every other employee.

Arbitration is private court.  Depending on the rules you select, you have between one and three judges.  Attorneys represent both the employee and the employer.  There is discovery where the parties exchange information and depose witnesses in front of court reporters.  There are motions where attorneys for the parties argue (probably only in writing) over the rules of the hearing or whether the employee has a case at all.  And, finally, there’s a hearing that looks remarkably like a trial but most likely in a hotel conference room rather than a courtroom.  But, unlike court, once an arbitration is completed, there may be no right to appeal for both parties.  Each could be stuck with the judgment.

The employee and the employer must agree to arbitration.  Employees must sign arbitration agreements (most often at the start of employment) promising only to bring their case before an arbitration panel, not in court.  In most cases, the arbitration agreement is presented at the start of employment and is a condition of employment.  The arbitration agreement may include things like class action waivers (frowned upon by the NLRB, EEOC, and possibly the Supreme Court), confidentiality, and attorney’s fees provisions.

Arbitration is also controversial.  Just this past month, arbitration has been criticized by former FOX News host and Roger Ailes sexual harassment target Gretchen Carlson, U.S. Senator Al Franken, The Atlantic, and Slate.  Ms. Carlson has taken up the flag of eliminating arbitration as her cause, making her an odd partner with Minnesota’s super-blue Senator.  Slate argued that the current sexual harassment nightmare is the result of stripping the right to a day in court away from sexual harassment victims.  When arbitration class action waivers were argued before the Supreme Court just a few weeks ago, the Court appeared split.  While the Court has also allowed (some would argue encouraged) arbitration, the pendulum appears to be swinging.

Employers spend a great deal of time and resources on preparing arbitration agreements and educating employees that they can only seek redress through arbitration due to a piece of paper they signed when they hoped this job would work out.  No one starts a job thinking about how they’re going to sue them later.  So should we be forcing them to make that decision when they are optimistic about their future with you?  Would it be better to spend these resources on making employees feel valued, that they are contributing to the organization, and fixing issues as they crop up?  I would argue it would be better.

Currently, over 250 women and men are in arbitration with Sterling Jewelers over sexual harassment claims throughout Kay and Jared jewelry stores all over the country. The case was originally filed in arbitration in 2009 – over eight years ago.  When this many employees are involved (and many others are witnesses), the attorneys’ fees are this huge, and the time these cases have taken, the reasons for arbitration seem silly.  It has not been quick, cheap, or secret.

Somewhere out there (and probably closer than we think) is a smart, capable plaintiff’s attorney who is gunning for arbitration agreements.  With sexual harassment scandals coming from every direction adding to the calls to end these agreements, it might not be too hard to finally take them down.

Photo by Dmitry Ratushny on Unsplash