Social Media Employment Law

Maintaining Tiger Blood With Your Social Media Practices

I refrained as long as I could.   It has been 24/7 Charlie Sheen, and I refused to join the fray.  But then I thought:  Maybe Charlie’s predicament can be another social media lesson for all of us.

So, what if you have a Charlie in your midst?  Your employee has taken to Twitter, taken to YouTube, even tried to sell out stand up shows at Radio City Music Hall.   Your employee has used every form of social media as his own virtual circus, and appears to be losing it in a way that will undoubtedly affect work performance.   What if Charlie Sheen was one of the Men at Work in your company?

Whether you’re on Wall Street, or any town’s main street, it is best not to send a Platoon of human resource executives after him without some careful consideration.  Maybe he’s been a poor performer who’s easily replaceable, or maybe he shines and does the work of Two and A Half Men.   Either way, it is inevitable that you start to question whether he’s worth this Major League headache.  But what can you do?

In prior posts, we have talked about the care you must take when making employment-related decisions, as they may be impacted by contractual obligations.   We have discussed cautionary tales about discrimination and defamation, and about the NLRB’s position in a Connecticut case on the ability to regulate protected concerted activity.   As an employee may be seen to be spiraling downward, you also cannot overlook the possibility that a potential mental illness will trigger some obligations under the ADA or the FMLA.

But as you’re lying in bed awake as the Red Dawn approaches, there is more good advice to heed when dealing with your Hot Shots and Young Guns.   Consider the legal activities law in he states in which you operate your business.   For example, New York has a statute which regulates what an employer cannot regulate when it comes to off-duty conduct.   Specifically, an employer cannot fire, refuse to hire, or otherwise discriminate against someone because the individual does the following outside of working hours and off premises: (1) engages in political activities; (2) lawfully uses consumable products; (3) engages in legal recreational activities; and (4) participates in union membership.   There are, of course, statutory exceptions that may apply in a particular set of circumstances, and the application of these laws to social media activities is no doubt on the horizon.

Employer Take Away:   What should you as an employer take away from this development?   

By now, you should be keeping a running checklist to review when your company intends to make an employment-related decision based on social media statements or conduct.   Is there a discriminatory intent or impact that can be evidenced in your decision?  Have you acted consistently and fairly with similarly situated individuals?   Does your decision violate some privacy right?  Are you restricting one’s ability to engage in protected concerted activity?  And, are you prohibiting an employee from engaging in an otherwise lawful activity beyond what is necessary to control your workplace?

If you continue to strike the proper balance between social media use and the need to exercise control over the workplace, you will no doubt continue to be Winning.

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