She “tweeted” what?!

published in McAfee & Taft EmployerLINC | February 4, 2014

By Tony G. Puckett

Employers may have become familiar with some of the legal and human resources issues involving social media use by employees. However, one social media platform offers an illustration of the many evolving legal, human resources and public relations issues that employee social media posts present for their employers. This platform is Twitter, the use of which has even coined a new legal claim – “twibel” – for an action by an attorney against singer Courtney Love for an allegedly libelous Twitter post.

Twitter users may post short comments, post links to Internet sites or photos, or re-post comments by other Twitter users – all limited to 140 characters. One might ask what someone can really say in such a short statement. The answer: plenty.

What were they thinking?

A recent “tweet” (slang for a Twitter post) by a public relations executive at a large media company demonstrates exactly how much harm can result from an insensitive and misguided social media post. The executive posted the following 64-character comment before boarding a flight: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” By the time the executive landed, the tweet had been reposted repeatedly to the extent it went “viral.” The re-posting caused the executive’s post to far exceed the reach of her own Twitter account, which had less than 500 followers. The tweet was reposted and commented upon negatively multiple times before the executive’s 12-hour flight landed in Africa and she had a chance to see the responses.

tweeted-whatThe executive apologize for the tweet. Her employer also apologized, even though it had no knowledge that she was going to post the comment and obviously did not authorize the comment on its behalf. The irony of how an experienced public relations person caused herself and her employer such a public relations nightmare did not lessen the fallout from the tweet. The executive’s employment was terminated also.

The public relations executive’s experience is not unique. A college professor tweeted that “obese PhD applicants” would not finish their dissertation if they lacked the “willpower to stop eating carbs.” The professor expressed sufficient regret quickly enough to save his job. In another example, an employee of an automobile manufacturer tweeted to his 7,500 followers: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to f**king drive.” This employee was not as fortunate, as he lost his job over the tweet.

In a survey by FindLaw, 29% of young adults were concerned that their social media posts would cause them to lose their jobs, and 21% stated they had removed social media posts due to potential employment consequences. In the same survey, 4% of adults reported that their social media posts resulted in negative employment consequences for them, including not being offered a job, losing a promotion, or being disciplined.

What’s an employer to do?

For employers, ill-conceived social media posts by employees can cause a multitude of business and legal issues, including insulting customers, libeling a competitor, disseminating confidential company, product of customer information, or workplace harassment or violence.

One way an employer can attempt to prevent employees from tweeting comments that cause these issues is through training. This is as true for the Gen X’ers who are new to the work force yet proficient with social media as it is for more experienced employees who are relatively uninformed about how social “social media” is.

Such training should include specific examples of the business and employment issues caused by inappropriate tweets and other social media posts. Usually, the idea of losing a job over a social media post is enough to make responsible employees consider their social media activity more carefully. However, the training should be specific in the types of social media posts that the employer or business considers inappropriate, such as: photos of individuals either without clothes or scantily clad; photos of employees in inebriated states or drinking alcohol; photos of employees engaged in any sort of illegal activity (including pranks or vandalism); disclosure of confidential information about the company, its products and its customers; unauthorized posts in the employer’s name; negative or derogatory comments about the company’s competitors; comments about co-workers that could be viewed as insensitive, bullying or harassing; and any comments that imply workplace violence. The more examples you can provide, the better this training will be for employees.

An employer also should have in place a social media policy that spells out specifically and in detail what is permitted and what is not permitted in social media posts by employees that relate to the employer or co-workers. The policy should identify the consequences of inappropriate posts. The policy also should remind employees that their social media posts may be viewable by the public in general, or re-posted or printed by others even if their personal social media sites are private or restricted to specific individuals. The policy and training can highlight this aspect of social media, as well as the fact that social media posts that have been deleted may be recoverable from the social media sites’ servers or from the computers of those who viewed and downloaded the post.

Social media policies have come under repeated scrutiny by the National Labor Relations Board (NLRB) for possible violation of employee rights under Section 7 of the National Labor Relations Act, which protects certain activity by employees that is concerted, and involves union activities or common interests in wages, benefits and other working conditions at their employer. A tweet about pay to employees or the conditions of working under a specific manager could be “protected concerted activity” under Section 7. The NLRB has ruled that several companies’ social media policies violate Section 7 because of broad prohibitions against general categories of prohibited activities. To address the NLRB’s concerns in this area, employers should make social media policies as clear and specific as reasonably possible in terms of prohibited employee actions. Employers also should include a statement that communications protected by federal labor laws are excluded from the social media policy. Another provision employers should include is a prohibition of posting on social media during work time. Employees do not have the right to engage in union activities while they are on the clock for the employer. This provision must exclude employee activity during breaks from work (even if paid) and other non-working hours an employee may be on the employer’s premises.

Social media use by employees is one area where employers must be proactive in training and current on the evolving legal issues created by social media posts, especially a short – but far from sweet – tweet.