Many social media users post practically everything about their lives including their jobs and their employers. Even though social media posts may be offensive, companies must balance legal requirements, employee rights, public relations and the risk of employment litigation when they respond.
Illinois is not among the five states that prohibit employers from taking adverse employment actions based upon an employee’s conduct outside work. But the National Labor Relations Act protects an employee’s right to communicate with their co-workers about their employment. Employees may engage in protected activity concerning their workplaces such as sharing complaints and organizing online.
The First Amendment prevents the federal government from interfering with speech. But it does not grant that right in private settings such as work. A private employee’s comments concerning work in person or on social media are not afforded First Amendment protections.
Illinois is also an at will employment state. An employer can terminate an employee at any time for most any reason. However, discrimination cannot be the basis for a job action, and the firing cannot violate an employment contract.
This depends on the circumstances. It is clear, for example, that an employee should be terminated for posting online racist rants. Other times, a more balanced approach is necessary.
Considerations include the impact on co-workers, clients, and customers. Employers should think about the potential harm to their business culture and reputation and whether it is condoning any inappropriate comments. Other factors include the post’s context and whether other employees will have to work with an employee who made racist, discriminatory, sexist, or other prejudicial or offensive comments.
Employers need to educate their employees and notify them that they may be held accountable for their posts. Employees should learn about their responsibilities and that any inappropriate posts can be attributed to their employer and harm its reputation, cause interpersonal problems, or antagonize clients or customers.
Employers need to provide training on tolerance, diversity, and inclusion. Use of social media should reflect this guidance.
Employers should also inform employees that their personal social media accounts, online networking accounts, blogs and other online posts may be reviewed. Any offensive or inappropriate posts may also lead to a job action which can include termination.
Prompt investigations are important. Delays may increase the harm of potentially harmful issues and the likelihood of problems with customers, clients, and co-workers.
Employers may benefit from seeking legal advice before implementing social media policies and terminating employees for inappropriate postings. An attorney can help assure that these actions are lawful.