Employee Complaints in a Social Media Age

I. Introduction

In the following discussion, we will delve into the evolving landscape of social media investigations, covering best practices, legal frameworks, and strategic solutions to help employers conduct effective fact-finding and manage their workforce in the digital era.

II. Social Media Investigations As a Basis for Discipline and Termination

As workplace conversations increasingly shift to social media platforms like X (formerly Twitter), TikTok, Facebook, and Snapchat, employers face unique challenges. Indeed, employees discussing work matters online can lead to issues such as discrimination, harassment, disclosure of trade secrets, or employees representing the company in controversial statements. To address these concerns, many employers actively monitor employee social networking sites, while others rely on reports from coworkers. Consequently, more employers are taking disciplinary action based on social media content. 

However, while this information can be invaluable for workplace investigations, employers must tread carefully because engaging in such practices can also open the door to potential litigation. Below are some key points to bear in mind before disciplining an employee for online content:

A. Best Practices

• Assess for protected concerted activity, privacy/off-duty conduct laws, whistleblower, and protected speech issues before taking disciplinary action related to social media activity.
  • When uncertain, seek guidance from employment counsel before implementing any adverse employment action.
• Ensure that internet usage policies explicitly state that it is a violation of company policy to use social media for sexual harassment or discrimination against employees.
• Reinforce and refer to these policies during both management and employee sexual harassment/discrimination training.
• Enforce social media policies consistently to mitigate potential issues of unequal treatment.

B. How the Law Impacts Speech and Expression in the Workplace

Federal and state laws play a crucial role in shaping an employer’s authority to regulate employee speech and expression, both within and outside the workplace, including on social media platforms. Alongside the US Constitution and the National Labor Relations Act (NLRA), numerous states have implemented legislation that constrains an employer’s capacity to address employee speech and expression. 

The outline provided below offers a summary of pertinent legal frameworks that employers should take into account when determining how to manage employee expression:

• The First Amendment of the US Constitution (public sector only).
• State laws prohibiting discrimination based on political activity or beliefs.
  • Examples of states with such laws include California, Louisiana, Missouri, Nebraska, New Mexico, and South Carolina.
• State laws prohibiting retaliation based upon off-duty lawful activity.
  • Examples of states with such laws include California, Colorado, Louisiana, New York, and North Dakota.
• State laws treating political affiliation as a protected characteristic.
  • Examples of states with such laws include California, Colorado, Louisiana, and Washington. Washington, D.C., also protects political affiliation.
• State laws prohibiting termination of employment for “legal expressions of free speech . . . made on personal social media.”
  • In 2023, Montana became the first state to create a statutory cause of action for terminations based on social media posts.

III. Social Media in the Hiring Process

In the past, the universe of information available to the company’s decision-makers during the hiring process was small and well-defined. Most companies would never dream of asking an applicant about her or his race, age, or religious beliefs before deciding whether to call them in for an interview. Thus, the employers making the hiring decisions could not plausibly be said to have made discriminatory decisions based on the unknown information. Once candidates are brought in for interviews, employers may learn of certain protected classifications (such as a candidate’s race, gender, and approximate age). Still, many others would remain unknown throughout the entire hiring process.

However, the rise of social media has blurred these boundaries, expanding the pool of available information exponentially. Profile pictures on social networking sites, often innocuously displayed, may inadvertently reveal details such as race, gender, and age. Additionally, images might hint at religious affiliations through attire. Beyond surface-level details, delving into an applicant’s social media presence may uncover a myriad of other personal attributes, including disability status, military service history, familial relationships, religious beliefs, and more.

Although social media information does not inherently lead to discrimination, employers who make adverse employment decisions after viewing an applicant’s social media profile may find themselves subject to a discrimination claim. Even if an employer did not directly see the problematic information, simply accessing a site where it is available could be interpreted as knowing and relying upon it. Moreover, employers might face disparate impact claims if their hiring practices disproportionately affect candidates with certain protected characteristics, whether directly related to social media or not. 

Therefore, while social media offers valuable insights into candidates, its use in hiring decisions requires careful consideration to avoid legal pitfalls.

A. Best Practices

As noted above, social media can be a valuable tool for companies or a trap for the unwary. Thus, although companies may find social networking sites helpful in hiring, like almost everything related to social media, there are risks and rewards. Risks include discriminatory hiring, privacy rights infringement, and consideration of non-job-related criteria. 

If and when an employer consults social media in the hiring process, employers should consider carefully whether searching social media sites is worth the risks in each particular case. If the decision is made to pursue this mode of data collection, consider the following:

• Review only publicly available data.
• Avoid covert attempts to access private data: Respect the privacy of individuals and refrain from attempting to access restricted information.
• Ensure compliance with the Fair Credit Reporting Act (FCRA): If a third party conducts background checks, verify their adherence to FCRA regulations.
• Time social media searches appropriately: Try to conduct the web search as late in the process as possible to avoid claims that the applicant was prematurely screened using prohibited criteria.
• Verify information authenticity and accuracy: Verify the authenticity and accuracy of any information used in decision-making, and consider discussing questionable information with the applicant.
• Separate the screening process from decision-making: Assign different individuals to conduct social media screening and make hiring decisions. Provide clear guidelines on what information is relevant and lawful. 
• Integrate social media screening into a comprehensive screening program: Utilize it as one aspect of a broader assessment rather than relying solely on social media.
• Adhere to EEOC and FCRA guidelines: Treat social media information like other publicly available data, such as criminal records.
• Establish a clear policy and provide training: Establish a policy outlining how hiring managers and others involved in the hiring process should use social media for screening purposes.

IV. Employee Complaints Going Viral – Strategies and Solutions

In today’s social media-dominated landscape, it's not uncommon for current and former employees to leverage platforms to voice grievances regarding their termination, express dissatisfaction with various aspects of their former employer's operations, or share negative perceptions. Faced with this reality, employers often find themselves grappling with challenging decisions: Should they intervene to halt the tirade? Ignore it in hopes that the uproar subsides? Pursue legal avenues?

Navigating these situations requires a nuanced approach that considers both legal and non- legal considerations, along with the potential ramifications of each course of action. Employers may seek to mitigate harmful, false, harassing, or demoralizing social media content authored by current or former employees through the following strategies:

1. Assert Violations of “Terms of Use” to Prompt Post Removal: Employers can leverage a site’s “Terms of Use” agreement or policy to challenge inappropriate posts. By utilizing a site, users implicitly agree to adhere to its terms, conditions, limitations, and notices. If a "Terms of Use" agreement is not readily available, reviewing the site’s Privacy Policy may yield similar terms.
2. Alert the Site Regarding Potential Violations of the Telecommunications Harassment Act: The federal Harassment Act ("Act") may offer recourse for employers seeking to remove posts containing harassing, abusive, or threatening content. This legislation prohibits sites from knowingly permitting their platforms to be used for posts intended to annoy, abuse, threaten, or harass individuals. Sites risk criminal liability under the statute if they allow such posts to remain after being notified that the content violates the Act. (See 47 USC §§ 223(a)(1)(C) and (h)(1)(C)).
3. Send Cease and Desist Letter: Employers may opt to send cease and desist letters to individuals posting harmful or defamatory content on social media platforms, asserting their legal rights and requesting the cessation of such behavior. While this approach can deter further negative posts and potentially lead to resolution, it also carries risks, including escalating conflict, incurring costs, and potentially damaging the employer’s reputation. Employers should carefully evaluate the situation and seek legal advice before pursuing this avenue.
4. Issue a Public Statement: Employers can choose to promptly address the matter by issuing a public statement in response to the harmful or defamatory content circulating on social media platforms. However, while a public statement can help manage the narrative and mitigate reputational damage, there are risks. Such statements may draw further attention to the issue, potentially prolonging its lifespan in the public eye. Additionally, if not carefully crafted, the statement could inadvertently exacerbate the situation or provoke a backlash. Consulting with public relations professionals and legal counsel can help navigate this process effectively.
5. Foster a Culture of Trust and Responsiveness to Internal Complaints to Mitigate Social Media Usage: Creating a workplace culture grounded in respect and prompt resolution of employee concerns can deter social media attacks. Providing notice of performance issues and an opportunity for correction can help prevent disparaging posts, as most employees recognize fair opportunities for addressing performance concerns. Although it never hurts to remind employees of the company’s internal complaint procedures, employers should be careful not to tell employees that they should complain internally rather than air their grievances online. The NLRB views such policies or directives as inhibiting employees from engaging in protected concerted speech in violation of Section 7 of the NLRA. See NLRB Operations-Management Memorandum (“OM”) 12-59, at 11 (May 30, 2012).

For more information, please contact:

Jana S. Baker, jana.baker@ogletreedeakins.com
Sarah Kuehnel, sarah.kuehnel@ogletreedeakins.com
William S. Rutchow, william.rutchow@ogletreedeakins.com