Let’s face it – your employees have lives of their own.

Rewind to 15 years ago, before the age of heavy Internet use and the advent of social media. Those pictures of your employee’s late-night party were probably never going to reach your eyes, and, by and large, his or her thoughts on politics, religion, social issues or any other personal beliefs were going to stay out of the workplace.

These days, one ill-timed blog post or off-the-cuff Facebook status could create a problem for employees and employers.

“The Internet is not private,” said Anthony Townsend, associate professor of information systems at Iowa State University. “You’ve got to think that everything you put out there is going to be seen by not just the people you intended to see it, but lawyers and everyone else.”

“Everyone else,” of course, can include employers. Human resources professionals in Des Moines say many companies don’t yet know exactly how to handle negative situations on social media.

“With social media right now, there’s no black-and-white answer,” said Lisa Welshhons, president of Merit Senior Living, a division of Urbandale-based Merit Resources Inc.

From a legal standpoint, there’s just not a lot of precedent on how businesses should handle issues that arise on social media, said Brett Trout, a patent attorney who’s written three books on Internet law and technology.

To prevent situations from arising, Trout said, it’s important for companies to have a well-defined social media strategy. Beyond that, encourage your employees to use common sense.

But when negative situations do arise, how should companies handle it? The Business Record came up with three hypothetical scenarios involving personal blog, email and Facebook accounts.
- Kyle Openhuizen



Scenario 1: Inflammatory personal blog

An employee of a company maintains a personal blog that is not affiliated with the company and does not necessarily relate to the company in any way (though some topics discussed on the blog could relate to the industry or employer). The employee writes a blog about a controversial topic -- the upcoming election for example -- and writes, “It is clear that Mitt Romney hates women,” citing what he believes are Romney’s stances on women’s rights issues.

The private sector company doesn’t necessarily endorse a candidate. But other employees and clients get wind of the comments and read the blog.

Townsend: In the private sector, (employees) don’t have rights to really do anything. If you think about something like, somebody shows up for work and while they’re at work they have a campaign button on, or a religious emblem, and the company doesn’t like it. They don’t have to let them have that kind of stuff. In my opinion, the blog the person writes is the same as showing up for work with a t-shirt or a button or some sort of position statement. I don’t know if they could tell them to take the blog down, (but could tell them to) take it down under pain of dismissal.

Trout: You have to keep two things in mind: Is it legal? And how is it going to be perceived? Firing the employee without necessarily specifying why that person was let go I think might avoid both of those problems. That wouldn’t be allowed in every state, but because Iowa is an employment at-will state, it would be. But what the company should do is clearly lay out, in the employee handbook, what the social media expectations are. … But the thing is, I think it’d be very bad for a company to put in their policy that you can’t make political statements. On something like this, I would say completely leave it alone. It just reflects poorly on the employee and it reflects poorly on the employer, but I don’t think it rises to the level that you want to fire them for.

Ganske: Nothing. I think any attempt to have a policy that would stifle that sort of discussion or limit that employees’ rights to share their own belief via social media could really create a liability for the employer. The employer should do absolutely nothing, as long as the employee is not attempting to somehow speak for the company. The employer can and should do nothing.

Welshhons: My response to that would be you really have to go through a series of questions to determine if this behavior is something that you can either discipline or terminate the employee for. The questions should be: Is the conduct protected under law? What is the relationship between the off-duty conduct and the job performance? And does the conduct have the potential to harm the company, and how and why? It’s going to be the employer’s responsibility to prove how this conduct impacted the job. If I were advising somebody, I would not advise them to take action against the employee. It doesn’t appear to be anything -- as long as you’re leaving the company name out of it -- disparaging against the company, disparaging against co-workers. It’s not taking place during company time. It’s a blog that is not a company blog.

In summary:

The consensus seems to be that the company shouldn’t take action against the employee, but in Iowa it could fire an employee without specifying a reason.

Additional takeaways:

Townsend adds that the situation could really affect a working environment if the statement was disparaging to women or religion. Those things could create a hostile work environment between the employee and the group of people he or she criticized.

If the statement would have been defamatory or considered hate speech, Trout said, it could have repercussions. A political statement like this one, although not necessarily a smart or professional one to make, wouldn’t likely be considered defamatory.

Not directly related to this scenario, but important to note, says Ganske, is that the National Labor Relations Board (NLRB) has said that employers can’t stop employees from saying things that are negative about the company. That includes what they feel is a negative work situation, but does not include trade secrets.



Scenario 2: Inappropriate private emails

The company becomes aware that during work hours, an employee sends what are deemed to be inappropriate emails through his or her private Gmail account - something that would be a fireable offense if sent in a work email. The emails are sent over a work computer, and the company’s IT department has access to all websites visited on work computers. The company doesn’t have a policy about sending private emails during office hours, and many of the company’s employees regularly access and use their personal email accounts throughout the workday, with no problems.

Townsend: This actually is simple and has been teased out. It’s explicitly a problem with regard to the Telecommunications Act (of 1996). If you are using my computer, my server, to access your Gmail account, even though the Gmail account is yours, you’re using my telecommunications systems to get to it. So inappropriate emails, things that are sexually harassing or are violations of the Telecommunications Act, it would be my responsibility to prohibit that kind of transmission act of getting your email. If it is on my server, it is my responsibility at that point. With the Telecommunications Act of 1996, it was pretty clear that you are actually expected to take responsibility for making sure that stuff that was inappropriate wasn’t going out through your system. I think if push came to shove, companies would clearly have the right to stop a person from using their Gmail account.

Trout: The key here is, it’s very important that the company not go looking for trouble. The company doesn’t have any right to search the employee’s private hardware, email account. They can certainly search the company’s hardware if they have a company-issued iPad or iPhone. If it’s in a company account, that’s fine, or if it’s going through the company’s server, then they certainly would have an ability to do that. It would make a big difference in this case how they found out. If it was brought to their attention, I don’t know if they could necessarily do anything, because it would be difficult to verify that. So you wouldn’t want to come in and blindside them and say “You are being reprimanded for doing this” if it’s not specifically laid out in the handbook, what you can do and what you can’t do.

Ganske: It is acceptable for a company to say the use of their hardware and servers gives them a right to monitor the content. And it’s not perfectly 100 percent clear how that applies to personal emails. But given the fact that they don’t have a written policy, and given the fact that other employees frequently use personal email on company time and hardware, I think they should do nothing. What they should do is really what are HR policy best practices anyway, which is have a policy that’s legal, communicate it to everybody, and then consistently adhere to it.

Welshhons: The one thing about this one is they don’t have a policy, and that’s really a problem. What the courts have done in situations where there have been employees who have been fired for sending inappropriate emails, or they’re on company email or personal, is they look at, should employees have an expectation of privacy? And because there is no policy, and because it was a personal email, then the employee probably had a reasonable expectation that it was private. That’s one of the proactive steps for all of the social media and online activity, is it’s really critical to have a policy in place. In the future, you would have more of a leg to stand on to take action.


In summary:

It’s hard to take action without a policy in place regarding personal email.


More thoughts

In Townsend’s opinion, an email becoming public is in the same league as an employee overhearing something said out loud. And if something is written in an email, “you’ve got to expect that eventually everyone in the world can see it.”

Having a policy in place could allow the company to take action in the future. Ganske recommends a policy that says employees should minimize personal email time and be aware that the company’s servers are monitored periodically by a third party.



Scenario 3: Racist Facebook comment

A company requires employees to keep their personal Facebook accounts open, and encourages employees to use the social media website. Naturally, many employees become “friends” on Facebook. One employee, who has always had good reviews and has never been in any kind of trouble at work, posts something on Facebook that other employees see and consider to be racist. One offended employee reaches out directly to the HR department.

Townsend: To me, that’s like playing with fire to want people to use personal Facebook accounts and keep them open. Facebook -- they say a picture is worth 1,000 words. Well, one picture is 1,000 words worth of potential damage. Personally, I just really question using personal social media systems in the workplace. People do things on the accounts that would be the normal use for their Facebook account, and then bam, its created a big problem in the workplace. Even slightly off-color stuff can play out with big repercussions in the workplace. Simple misunderstandings can play out horribly.

Trout: The company can fire you for no reason, so they can make a strong suggestion that everybody have an open Facebook account. And if they don’t, they can fire you. From a practical standpoint, if I was advising a company, I certainly would not advise that. (In this situation), Title 7 of the Civil Rights Act protects people from being discriminated against based on race, sex, origin or religion, and those protections extend to the workplace. If the situation was that there was one word that they said, that’s probably not going to be enough.

Ganske: Companies can have personal conduct and ethics-type policies in place. But in this scenario I’m imagining the company doesn’t, and most companies don’t. If the person is performing well, if they are not doing anything objectionable at work, the fact that they posted something that was (inappropriate) on Facebook on their own time on their own equipment, the company can’t do anything, and shouldn’t do anything. If they bring attitudes to the workplace that create a hostile environment that affect productivity or are discriminatory in the workplace, that’s a different issue. But simply expressing opinion in a non-work setting that may be construed as racist - it’s not a great career move and not a good personal practice, but I don’t think the employer has much right to do anything.

Welshhons: My answer to that would be that off-duty conduct can constitute actionable harassment if there is sufficient connection to the workplace. In this case, because the employee is friends with other employees, then that’s really the connection to the workplace. In this situation, I would say it’s actionable, that the company needs to treat it like they would any other complaint of harassment or discrimination.


In summary:

If the comment creates what would be considered a hostile work environment, that’s where it crosses the line.


More thoughts:

On a related note, managers should be careful about being Facebook friends with employees that report to them, Welshhons said. They tend to end up with more information than they really want or need to know about an employee’s social life.

Requiring employees’ accounts to be open is a risky business practice.

People have a right to a private life, Ganske said, provided that their comments aren’t slanderous or an incitement to violence. A lot of well-rounded and well-meaning social media policies have been deemed not to be legal by the NLRB.