By Allen Smith 4/1/2015
By now, news reports about stupid employee tweets are legion.
Take Justine Sacco’s Dec. 20, 2013, tweet before boarding a plane to Cape Town, South Africa. She tweeted, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”
While she was in the air, reaction to her tweet erupted from all corners, reported The New York Times. Tens of thousands of angry tweets responded to her joke, the newspaper noted, including “one from her employer, IAC, the corporate owner of The Daily Beast, OKCupid and Vimeo: ‘This is an outrageous, offensive comment. Employee in question currently unreachable on an intl flight.’ ” Sacco later was discharged.
Then there was Rayhan Qadar, who was fired by Hargreaves Lansdown after he tweeted, “Think I just hit a cyclist. But I’m late for work so had to drive off lol,” according to Investment Week.
Discharging someone for a stupid tweet isn’t always straightforward, though. Criticizing one’s boss, for example, may not be the most brilliant move, but if the tweet is worded a certain way, it may be protected concerted activity under the National Labor Relations Act (NLRA).
So what’s an employer’s next move after it becomes aware of an inappropriate tweet from an employee’s account?
Factors to Examine
Christina Stoneburner, an attorney with Fox Rothschild in Roseland, N.J., told SHRM Online that when determining whether to discipline an employee for a tweet, employers can consider several factors:
- Does the tweet disclose trade secrets or confidential proprietary business information of the employer?
- Does it reference or advocate illegal activity?
- Does it threaten physical violence against any employee of the company?
- Does it contain language that could be viewed as racist or sexist or as otherwise violating the company’s harassment policies?
- Is the tweet soliciting work for a competitor or someone other than the employer, and, if so, does that violate a restrictive covenant or conflict-of-interest policy?
- Is the tweet defamatory?
- Does the tweet disclose personal, confidential information of customers or employees, such as bank account information, Social Security numbers, attorney/client information, or health information protected by the Health Insurance Portability and Accountability Act?
“If the answer to any of these is ‘yes,’ then an employer can discipline the employee for the tweet,” Stoneburner said.
Before handing out discipline, however, employers should conduct an investigation, most experts advise.
“Employers should verify the content of the tweet rather than relying on a report from another person,” Stoneburner said. “Employers should also print out a copy of the tweet in case the person who posted it deletes it.
“If there is some doubt as to whether the employee is the person who posted the tweet or some ambiguity in the tweet that needs to be explained, then the employer should interview the person who posted it,” she continued. “In other cases, where there is no doubt the employee posted the tweet, then there may not be a need to interview the employee before proceeding with discipline.”
But Michael Schmidt, an attorney with Cozen O’Connor in New York City, said that unless there is a situation that warrants immediate, urgent action—for example, a specific, targeted threat of violence—the employer should always conduct a reasonable investigation before taking adverse action as a result of the tweet.
He also remarked that “assuming no outright prohibition [by the law] on disciplining the employee for the tweet, the employer also may consider both the impact that the tweet has or may have on co-workers, as well as the impact on morale if the offending employee or others perceive the employer as overly regulating employee speech and expression, particularly of a more innocuous and not patently offensive message.”
Erin Dougherty Foley, an attorney with Seyfarth Shaw in Chicago, said, “An employer should generally interview the employee who is alleged to have made the offensive posting” just as it would interview the individual or individuals involved as part of any investigation into employee misconduct.
“Remember, not everything you read on the Internet is true!” she noted. “Certainly, we’ve seen situations where someone left their social media platform open and someone else put up the post, or the employee explained that her teenagers were playing with the phone and made the inappropriate comment, or that someone hacked into the employee’s account, or the Martians show made me do it—trust me, we’ve heard the excuses! I always think it’s a good idea to get the employee’s side of the story before taking any type of disciplinary action.”
Protected Concerted Activity
Schmidt observed that “Certain tweets, depending on their subject matter and actual or intended audience, may be considered protected under the NLRA because they constitute protected concerted activity or may constitute protected activity under a state’s legal activities law, in which case the employer may be limited in what it can do in response to the tweet.”
Some hallmarks of protected tweets include “tweets that criticize a boss or management in general, comment on wages or benefits, or otherwise complain or comment about work-related expectations, demands or conditions,” said Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago. “These kinds of tweets can appear offensive and inappropriate to management, but, depending on what a particular tweet actually states and who follows and comments on it and how, it may or may not be protected under the NLRA.”
She added, that the line between a protected or unprotected tweet, “can be quite apparent or quite thin, depending on the circumstances. If the tweet is legally protected, then, even if offensive to management, the employer should not discipline, at least not with respect to any portion of the tweet or follow-up that would likely be deemed to be protected under the NLRA. The remainder of the tweet, however, depending on what it states, may provide legitimate and lawful grounds for appropriate disciplinary action.”
Protected concerted activity can be any discussion of terms and conditions of employment, Stoneburner noted. She explained that “a tweet that says that the employee’s boss is an idiot, unqualified and does not pay overtime when due would certainly be a tweet that may upset the supervisor and the employer, but may also be concerted activity because of the reference to overtime.
“Of course, if the tweet is patently offensive, then that language may take it outside of the protection of the NLRA,” she added.
“Employer discipline for tweets and other social media posts of an employee illustrates the fine line between protecting the right of employees to engage in protected expression and engage in lawful activity, on the one hand, and the right of employers to conduct [their] business and protect [their] employees and other legitimate business interests,” Schmidt said. “While it is imperative that employers establish and communicate social media policies for their employees, such policies should reflect that balance and avoid many of the legal pitfalls that have been litigated thus far.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.