Lawyer Says Companies Should Be Proactive When It Comes To Employees' Social Media
South Florida journalist Joel Franco faced heavy scrutiny in March after old tweets surfaced online. This month, a second wave of outrage was directed at him.
Multiple women came forward with sexual assault allegations, some of them saying the acts occurred when they were minors.
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This case reignited a discussion on how employers should approach employees' social media. Susan Eisenberg, a labor and employment attorney, said companies should investigate online allegations of misconduct.
“Employers don’t have to tolerate it, even if it just shows the employer in a bad light,” Eisenberg said. "The simple act of posting, either sexually offensive, racially offensive or threatening information is sufficient.”
Some states, like California and New York, protect employees from being terminated due to their off-duty conduct, which includes posting on social media. Florida doesn't offer this protection. Workers are not protected if their posts are violent, discriminating, or threatening.
With the nation's focus on the Black Lives Matter movement, there is also an increased public intolerance for racist posts online. Twitter users take it upon themselves to investigate and expose individuals in these videos or posts. Companies are often flooded with messages demanding they get fired.
Eisenberg said action should be taken on a case-to-case basis. If a manager posts racist remarks, she said it could potentially be direct evidence of discrimination that can lead to termination. Co-workers can also create a hostile environment online. In that situation, the law requires employers to take measures to end the harassment and ensure it doesn’t continue.
“Depending how bad the post is, it could be just admonishing employees,” she said. “Asking them to take it down. Making an apology. In situations where it’s really egregious, yes, termination would be appropriate.”
However, Eisenberg does not recommend vetting prospective employees on social media. Using personal information when hiring could present liability issues.
“It will give you a lot of information that you wouldn't otherwise have about the person,” Eisenberg said. “For instance, you see pictures of people. You see them with their families. You get to know their political affiliations.”
Hiring decisions should be based on skill, education, background and experience, she said.
Eisenberg advises companies to be proactive. She said now is a great opportunity for employers to review and update their anti-harassment policies in conjunction with their social media policies. She recommends using resources from the Equal Employment Opportunity Commission.
“It’s also a really good time to do some training with your employees, so that they understand that what they post can be hurtful and harmful,” Eisenberg said.