Off the Clock and Online: Investigating Employee Speech on Social Media
Welcome to the January 2021 edition of our newsletter! In this issue, we’ll examine how social media posts by employees and vendors can affect a company’s reputation, and steps to help mitigate any possible damage.
Free Speech or Brand Damage? Researching Employee Comments
For much of the 20th century, executives were loath to wade into social or political issues, most often simply making political donations to causes or candidates they supported, perhaps serving on an advisory commission or other non-governmental group. The first two decades of the 21st century have seen an evolution of this philosophy, as more chief executives assert positions related to environmental standards, workplace conditions and other causes which often, by virtue of an individual’s leadership, tie their company to those positions.
Often, the linkage between a leader’s position and his company’s is intentional, obvious, and expected – a path being charted in which a marker is laid down by a leader for his employees to follow. In other instances, however, an executive or employee engages in speech or actions that are less visible – possibly meant to be private, or at least not directly connected to the actions of their employer. These types of comments are often made on various social media platforms, including some that were accused in recent months of inciting violence spurred by conspiracy theories.
What can a company do to gird itself for any potential fallout from an employee’s possible incendiary comments, and – as was seen at the U.S. Capitol earlier this month – the unlikely, but very real, possibility that those words manifest into actions? Although developing a social media policy for the company and its employees may seem obvious, a 2016 Pew Research Center study found that 51 percent of employers had such a policy in place. That study also found that workers who were aware of such a policy were less likely to use social media while on the job.
Regulations currently vary by state as to what an employer can compel an employee to do regarding their social media, but many states allow an employer to request that they be added to an employee’s friends or contacts, but most do not allow compulsory compliance. The balance of an employee’s right to speak their mind, and to the privacy of their personal account, is often in tension with an employer’s need to manage its image and that of its employees. Labor laws provide various protections for employee speech, but in many other cases – from Hollywood directors to university professors – employees have been fired for their social media posts, often concerning posts made many years prior. If an employee is believed to be engaging in speech that could be detrimental to your company, it is best to start with looking at what policies are in place – and possibly implementing and adopting some if none exist. Then, a review of the employee’s posts and interviews with any co-workers who may also be among the person’s social media friends could be warranted, if internal policies and state or federal regulations permit. It may be best, depending on the circumstances, to fully investigate the circumstances behind potentially controversial social media posts by employees before they become too inextricably linked to an employer’s broader image and reputation.