Legal Issues

Another Example Why a Social Media Policy is So Important

social-media

By Eric B. Meyer

A school-bus driver calls a student a “little bitch” on Facebook, gets fired, and then sues? Of course she does.

So, what does the Complaint say? And what can employers take away from it?

In her Complaint, the (former) school-bus driver claims that, after her shift ended, she privately messaged a student — someone who never rode her bus — on Facebook. This student was supposedly giving her son a hard time at school. A dialogue ensued and the driver ultimately Facebook messaged the bully:

YOU LITTLE BITCH, what are you going to do when Stephen dumps your ass after you have the baby like he did his other girlfriend.

The school learned of this online exchange, and the driver was fired.

The driver subsequently sued in federal court claiming that her termination for “off-the-clock” Facebook messaging a student who didn’t ride her bus violated her freedom-of-speech rights under the First Amendment, equal protection and due process rights under the Fourteenth Amendment, as well as similar rights under the State Constitution of the Commonwealth of Kentucky.

2 key takeaways for managers and HR

What HR should take away from this case?

I’m no Constitutional lawyer. I leave that to the other brainiacs at my law firm. Instead, let’s pretend for a second that the school-bus driver worked in the private sector. Could she get away with her actions if (1) the messages happened off-the-clock; and (2) the employer had no social-media policy?

Hell no!

  1. Social media has watered down off-duty-conduct laws. Many laws have states preventing employers from disciplining employees for legal behavior engaged in off-the-clock. For example, in California, no employee may be disciplined for lawful conduct occurring during nonworking hours away from the employer’s premises. Kentucky makes it unlawful for an employer to discriminate against an employee because the individual is a smoker or nonsmoker. But, even if Kentucky’s off-duty-conduct laws were as rigid as California’s, it is inevitable that in today’s wired-age, where all of us are a smartphone away from instant access to Facebook, Twitter, and anything else social media, that off-the-clock behavior will bleed into the workplace. See, for example, this California case affirming employer liability for off-duty harassment via a blog. Therefore, employees who believe that their actions online — as long as they take place outside the office — will not affect their job status have another thing coming.
  2. The absence of a social-media policy generally won’t protect an employee whose online behavior negatively impacts the workplace. Let’s pretend that your company just shredded its anti-harassment policy. Could your employee light a burning cross in the file room and still keep his job? No. Policy or not, that behavior is never tolerated. We all know that.

Why you need a social media policy

Remember why we have policies: to educate and inform. Policies apprise employees of the rules at work and show them how to keep their noses clean. Many no-no’s are obvious, but others may not be. So, we have anti-harassment policies to let our workforce know what is expected of them and how to avoid the behaviors that could otherwise get them into trouble.

This is precisely why I recommend a social-media policy. Whether you want to promote employee use of social media or poke a hole in that balloon, a social-media policy (paired with training) is the vehicle to inform and educate your workforce.

But, much in the same way that the absence of an anti-harassment policy won’t protect a workplace jerk, not having a social-media policy generally won’t either. Hopefully, a policy will eliminate some of these headaches. But, without a policy, you can still take action to make your workplace jerk-free.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .
  • http://stopdoingnothing.com Patrick Allmond

    I think social media policies are a joke, and it would not have made a bit of difference. :) The people that want to do something harmful to themselves or somebody else are not the type of people that think about policies before they step into it. I don’t believe the bus driver would have thought “Well… I think this girl is a bitch so I am going to say it on Faceb… oh wait. I can’t. That darn policy prevents me from doing it”. General communication policies that have the phrase “on all mediums including but not limited to all online methods of communication…” are great. The policies that would be good in a social media policy also apply to other mediums. So any good policy should cover all of them.

  • Chad Vankoughnett

    I have to respectfully disagree with Meyer on this one. Communications that happen between individuals that are outside of the work environment and have nothing whatsoever to do with the work environment can not be addressed by management in the work environment in a disciplinary way. Was the driver a bit stupid to say what she did? Certainly. Was her communication mature or responsible in any way? Of course not. But it also doesn’t seem actionable by the institution.

    Your 2 points both fail to address this situation directly. Of course your off-duty communications can affect your job, but only if they pertain to the work or business, or negatively affect the workplace directly (and can be shown that it would do so to a reasonable person [are there really any reasonable people left in this world?]). Your second point fails to address policy contravention with respect to this article in any way whatsoever. Of course you would be fired for lighting a cross in the coffee room. Arson is always frowned upon, and no one wants someone like that working for them. However, a closer analogy would be if I were to light that cross on my front lawn (not that I ever would, of course). I COULDN’T be fired for that, regardless of policy, and that is a much closer analogy to this situation.

    Like it or not, there are very few black and white situations when it comes to social media. The line between workplace and off the clock communications has blurred radically, and there has been little precedent set that allows us to see clearly where the lines between freedom of expression and actionable behaviour exist. Don’t get me wrong…we need social media policies, but more importantly, people need to learn that what they say on social media is public. If you wouldn’t shout it on a street corner, you shouldn’t write it on Facebook.