2020 has been described as “unprecedented” because of the pandemic, of course, but also due to pronounced contrasting political and social views among Americans. The same issues that influence our country’s divisive politics – racial, religious, gender and sexual orientation differences and disagreement over how COVID-19 should be handled, to name a few – also affect workplaces. It isn’t uncommon for employees who are passionate about an issue to take to social media to express their views – and sometimes, those expressions tilt over into contentious speech.
HR experts do not recommend that employers monitor their employees’ social media activity, because that could be perceived as an invasion of privacy and might expose protected information (e.g., an employee’s inclusion in a protected class). Experts do, however, generally agree that business leaders should address racist and other offensive or derogatory social media posts when they learn of such comments.
Once someone complains to your company about an employee’s problematic online commentary, it becomes your concern. You can face legal, reputational and cultural risks by ignoring that conduct, particularly if it constitutes harassment of individuals within a protected class. You also may face liability if you learn of online discriminatory harassment that creates a hostile work environment, even if the comments are made on an employee’s personal social media account outside of work hours.
If you become aware of problematic content an employee has posted on social media platforms, be ready to act, adhering to these guidelines:
Not responding could escalate the situation and amplify underlying issues in your workplace. For example, employees who make objectionable statements when off duty may also be doing so at work. If that’s happening, it could undermine efforts to create a respectful workplace and ultimately result in a complaint.
An offending post also might be shared widely and reflect poorly on your organization. Employers who let employees’ offensive social media posts slide could be seen as agreeing with – or at least tolerating – inappropriate commentary. And that may not sit well with other employees, vendors or customers.
As soon as you become aware of a potentially offensive online comment, let the person who reported it know you’ll begin an investigation immediately. Then do it.
Quickly review the social media post’s content and confirm your employee posted it. Evaluate the severity of the message and determine if it violates your harassment or discrimination policies. Assuming it does, consider what disciplinary measures you might need to take.
Any steps you take should align with your HR policies and your company’s culture. If you do not have a social media policy or if your existing anti-harassment policy does not address online conduct and social media posts, now is the time to put those policies in place.
Besides having policies that prohibit online discrimination or harassment, companies should consistently enforce their provisions. As an example, if you learn an employee used a racial slur on social media and you discipline the employee for it, be careful to handle similar situations in the same way going forward.
As a best practice, limit disciplinary action, including termination, to scenarios in which the online conduct violates your written policies – or, in the absence of those policies, to situations that typically would result in discipline or termination if the same conduct occurred at work.
Remember that private-sector employees’ freedom of speech protections don’t shield them from losing their jobs if they make inflammatory comments, whether they make them in person or on social media. In other words, firing an employee in a private workplace does not violate the employee’s First Amendment rights.
Other potential disciplinary actions include formal warnings or diversity and inclusion training to reinforce more appropriate behaviors.
Before deciding on and informing offending employees of disciplinary measures for their online transgressions, be sure to consider local and state laws. For example, some states and cities have codified “political affiliation” as a protected class. In those cases, employers must be careful that the post is offensive beyond the employee’s political affiliation.
Some state-level employment protections also prohibit terminating an employee for lawful off-duty conduct. Online speech that attacks a protected class or constitutes actionable harassment, however, doesn’t fall into that category.
With tensions running high due to the COVID-19 health crisis, the presidential election and recent incidents involving police violence and related protests, employees are bound to have and share their opinions on such matters. Since discussions around these issues can spill into the workplace, employers should be prepared to handle offenders who cross the line. In most cases, your company can discipline or fire employees for objectionable off-duty conduct – and you may need to do so to avoid legal liability and maintain a culture of inclusion and harmony.
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