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By now, news reports about stupid employee tweets are legion.
Take Justine Sacco’s Dec. 20, 2013, tweet
before boarding a plane to Cape Town, South Africa. She tweeted, “Going to
Africa. Hope I don’t get AIDS. Just kidding. I’m white!”
While she was in the air, reaction to her
tweet erupted from all corners, reported The New York Times. Tens of thousands of angry tweets responded
to her joke, the newspaper noted, including “one from her employer, IAC, the
corporate owner of The Daily Beast, OKCupid and Vimeo: ‘This is an outrageous,
offensive comment. Employee in question currently unreachable on an intl
flight.’ ” Sacco later was discharged.
Then there was Rayhan Qadar, who was fired by
Hargreaves Lansdown after he tweeted, “Think I just hit a cyclist. But I’m late
for work so had to drive off lol,” according to Investment Week.
Discharging someone for a stupid tweet isn’t
always straightforward, though. Criticizing one’s boss, for example, may not be
the most brilliant move, but if the tweet is worded a certain way, it may be
protected concerted activity under the National Labor Relations Act (NLRA).
So what’s a manager’s next move after he becomes
aware of an inappropriate tweet from an employee’s account?
Factors to Examine
Christina Stoneburner, an attorney with Fox
Rothschild in Roseland, N.J., said that when determining whether to discipline
an employee for a tweet, supervisors can consider several factors:
“If the answer to any of these is ‘yes,’ then
an employer can discipline the employee for the tweet,” Stoneburner said.
Before handing out discipline, however,
supervisors should conduct an investigation, most experts advise.
“Verify the content of the tweet rather than
relying on a report from another person,” Stoneburner said. “Print out a copy
of the tweet in case the person who posted it deletes it.
“If there is some doubt as to whether the
employee is the person who posted the tweet or some ambiguity in the tweet that
needs to be explained, then the employer should interview the person who posted
it,” she continued. “In other cases, where there is no doubt the employee
posted the tweet, then there may not be a need to interview the employee before
proceeding with discipline.”
But Michael Schmidt, an attorney with Cozen
O’Connor in New York City, said that unless there is a situation that warrants
immediate, urgent action—for example, a specific, targeted threat of
violence—there should always be a reasonable investigation before taking
adverse action as a result of the tweet.
He also remarked that “assuming no outright
prohibition [by the law] on disciplining the employee for the tweet, the
employer also may consider both the impact that the tweet has or may have on
co-workers, as well as the impact on morale if the offending employee or others
perceive the employer as overly regulating employee speech and expression,
particularly of a more innocuous and not patently offensive message.”
Erin Dougherty Foley, an attorney with
Seyfarth Shaw in Chicago, said managers “should generally interview the
employee who is alleged to have made the offensive posting” just as they would
interview the individual or individuals involved as part of any investigation
into employee misconduct.
“Remember, not everything you read on the
Internet is true!” she noted. “Certainly, we’ve seen situations where someone
left their social media platform open and someone else put up the post, or the
employee explained that her teenagers were playing with the phone and made the
inappropriate comment, or that someone hacked into the employee’s account, or
the Martians show made me do it—trust me, we’ve heard the excuses! I always think
it’s a good idea to get the employee’s side of the story before taking any type
of disciplinary action.”
Protected Concerted Activity
Schmidt observed that “Certain tweets,
depending on their subject matter and actual or intended audience, may be
considered protected under the NLRA because they constitute protected concerted
activity or may constitute protected activity under a state’s legal activities
law, in which case the employer may be limited in what it can do in response to
Some hallmarks of protected tweets include
“tweets that criticize a boss or management in general, comment on wages or
benefits, or otherwise complain or comment about work-related expectations,
demands or conditions,” said Sonya Rosenberg, an attorney with Neal Gerber
& Eisenberg in Chicago. “These kinds of tweets can appear offensive and
inappropriate to management, but, depending on what a particular tweet actually
states and who follows and comments on it and how, it may or may not be
protected under the NLRA.”
She added, that the line between a protected
or unprotected tweet, “can be quite apparent or quite thin, depending on the
circumstances. If the tweet is legally protected, then, even if offensive to
management, the employer should not discipline, at least not with respect to
any portion of the tweet or follow-up that would likely be deemed to be
protected under the NLRA. The remainder of the tweet, however, depending on
what it states, may provide legitimate and lawful grounds for appropriate
Protected concerted activity can be any
discussion of terms and conditions of employment, Stoneburner noted. She
explained that “a tweet that says that the employee’s boss is an idiot,
unqualified and does not pay overtime when due would certainly be a tweet that
may upset the supervisor and the employer, but may also be concerted activity
because of the reference to overtime.
“Of course, if the tweet is patently
offensive, then that language may take it outside of the protection of the
NLRA,” she added.
“Employer discipline for tweets and other
social media posts of an employee illustrates the fine line between protecting
the right of employees to engage in protected expression and engage in lawful
activity, on the one hand, and the right of employers to conduct [their]
business and protect [their] employees and other legitimate business
interests,” Schmidt said. “While it is imperative that employers establish and
communicate social media policies for their employees, such policies should
reflect that balance and avoid many of the legal pitfalls that have been
litigated thus far.”
Allen Smith, J.D., is the manager of workplace
law content for SHRM.
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