Question: I just found out that an employee posted a hateful comment toward immigrants on her personal Facebook page. We’re afraid of the bad PR impact on our business. Can we fire her for violation of our policy against discrimination?
Answer: Possibly, but you need to do some homework first. The moment you become aware of the post, begin collecting information. Your goal is to determine whether a hateful comment was made, and if it was, whether it violates your policies. Do not immediately discipline based on allegations only. Before you focus on distancing yourself from negative publicity, your priority should be to solidify your reputation to employees that you respond fairly and calmly to all allegations.
Steps for a Fair and Calm Response
While collecting information, take the following steps.
#1: Decide Whether Leave or Suspension is Required
First determine whether the alleged post is serious enough to remove the employee from the job site while you conduct an investigation. If there will be significant disruption, distraction, or even safety concerns, it’s best to put the employee on leave or suspension.
#2: Consult Witnesses and Coworkers
Second, collect information from available witnesses and co-workers about whether a post was made, how they are aware of the post, and whether there have been any similar comments at work or affecting work. Although tempting, do not demand access to the employee’s Facebook account, as that would be a privacy violation and could raise a privacy complaint.
#3: Speak to the Employee Directly
Third, get the employee’s side of the story. If the employee under investigation is represented by a union, be aware of Weingarten rights to have a representative present during investigatory interviews that may reasonably lead to discipline.
#4: Learn from Takeaways—and Adjust
Finally, evaluate what you have learned. Did the hateful post occur? Does it violate your policies and were those policies communicated to the employee? Could it be considered workplace harassment based on its impact on the work environment (for example, could the comment cause coworkers to feel unsafe)? Even trickier, could some or all of the post be considered protected activity under the National Labor Relations Act? Most non-management employees have the right to band together to complain about work, even if it is angry and inflammatory. Generally, an isolated hateful comment about immigrants will land an employee in hot water, as discovered by a recent Oregon Department of Motor Vehicles employee. (Unlike private sector employees, however, public sector workers have Constitutional free speech rights.)
#5: Consult Employment Attorneys and Employment Law Resources
You may want to consider also putting together a company-wide Social Media Policy; access our model policy here, available for free download. To avoid future incidences, too, it’s good to consider anti-discrimination training for your workforce.
If you need help determining how to handle an offensive off-the-job social networking post, call your Vigilant employment attorney or learn more about our flat fee employment law advice. With unlimited access to your employment attorney, you can be proactive and squash issues early on while staying compliant with employment laws.