HR Tip of the Week

HR Tip of the Week

HR Tip of the Week: Does Your Social Media Policy Stand Up to Today’s Climate?

Social unrest, such as in the wake of anti-racist movements taking place around the country, leads many to express their voice on social media. Employers question what their rights and responsibilities are regarding employees’ social media, and how to respond when an employee makes offensive off-duty remarks. Here are some things to keep in mind:

The First Amendment prevents the federal government from interfering with freedom of speech, but it does not guarantee that right in private settings. A private-sector employee’s comments (in person or in writing) are not shielded from employment consequences under the guise of freedom of speech.

In Missouri, employers are permitted to take adverse employment actions against employees based on lawful off-duty conduct on social media or in person. Once someone complains to an employer or calls attention to an employee’s off-duty comments or actions, it becomes the employer’s concern, particularly if the conduct constitutes harassment based on a protected class.

Many States, including Missouri, prohibit employers from retaliating against employees for engaging in political activities. However, employers should consider whether or not an offensive post or speech is directly tied to an employee’s political affiliation. Expressions of racism or other harassment are not political speech.

An employer may be liable for an employee’s offensive social media post if it is aware of discriminatory harassment-even if it is done through an employee’s personal social media use and outside of work hours-if the conduct creates a hostile work environment.

Employees may be subject to disciplinary action up to and including termination for social media posts that include:

  • Hate speech of any kind (regarding any protected classes),
  • Speech that is severe enough to constitute a hostile work environment (regarding any protected classes),
  • Threats to employee safety or of workplace violence,
  • Trade secrets, and
  • Confidential and proprietary company information.

Source: The National Law Review

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