Question: Several employees have reported that a coworker posted offensive content on Facebook about the recent protests. They say that she’s making “racist” comments and it makes them uncomfortable. Can we discipline the employee? If not, what else can we do to address this behavior?
Answer: First, gather all of the facts. Find out exactly what the employee posted or said online, but do so within the bounds of privacy law. You cannot compel employees to provide access to their personal social media accounts and you shouldn’t use trickery to gain access yourself, but you can ask the employees who complained to provide screenshots of the material.
Next, give the employee who posted the material an opportunity to explain. Once you have the whole story, determine if the conduct violates your social media and anti-harassment policies (and any other relevant policies). If you conclude that your policy was violated, you must take appropriate corrective action to make the behavior stop. Bear in mind, however, that certain employee conduct and speech is protected by the National Labor Relations Act (NLRA). The NLRA protects most non-management employees’ right to discuss or complain about the terms and conditions of employment with each other – even online. If your employee engaged in an online discussion with co-workers about race discrimination in your workplace, this conduct may be protected under the NLRA. It may also be protected under nondiscrimination laws such as Title VII of the Civil Rights Act. The way in which employees exercise these rights, however, could cross the line to the point that it’s no longer protected. It depends on the specific facts.
Your investigation and any resulting discipline should be kept strictly confidential. However, you may want to take this opportunity to re-educate your employees on their rights and obligations to each other and revisit your policies. Remind your employees that since they work for a company rather than a government agency, they don’t have First Amendment rights to say whatever they want. To the extent they believe that their off-duty conduct is protected, explain that certain conduct becomes work-related when it affects co-workers, the company, or the work environment. Make clear that your anti-harassment and social media policies apply even when employees are offsite and off-duty. This is a complex, ever-changing area of the law. Always consult with your Vigilant Law Group employment attorney before taking disciplinary action arising from social media speech and conduct. For more information, see our Legal Guide, Off-Duty Conduct, and Model Policy, Social Networking Policy.