TO TWEET OR NOT TO TWEET: AN OPINIONATED AND ONLINE EMPLOYEE’S DILEMMA (AND AN HR HEADACHE)

The far reaching impacts of social media on the workplace have garnered significant attention from this blog – and rightly so.  The constant appearance of employee use of Facebook and Twitter on the newswire demands that attention.  And we’re not just talking about employees in low profile, private-sector positions here either, folks.

A few months ago, an Indiana deputy attorney general used his private Twitter account to comment on the ongoing protests at the Wisconsin state capitol.  The deputy suggested at the time that one option for removing the protestors from the capitol would be to “use live ammunition.”  He went on to say that he would “advocate deadly force” in handling the situation.

Not surprisingly, his employer – the state of Indiana – was so unhappy with these remarks that they terminated him. Following his termination, the deputy attorney general announced that his comments were intended to be “satirical.”

The issue of an employer’s ability to discipline a member of its workforce for off-duty conduct is not a new one by any stretch.  The proliferation of social media has added a new dimension to this debate, however.  The various ways employees can immediately access social media outlets  – desktops, laptops, phones, tablets, app-enabled TVs – often creates a temptation too difficult to pass up for the most vocal of the group, particularly when hot button issues appear on the news crawl.

Not surprisingly, those vocal Tweeters and Facebookers are the most likely to appear on the radar of your friendly neighborhood Human Resources department, giving rise to the question – What, if anything, can an employer do about the offending tweeters or status updates?  The answer has become more complicated in recent months and requires a delicate balancing act (which, like in the case above, can be even more difficult if you are a public sector employer.)

While the analysis and applicable law can differ from state to state, the general principle which applies in most jurisdictions is that there must be some connection between the off-duty conduct and the workplace such that the work environment is impacted.  Given the First Amendment implications of social media, the analysis can be more complicated if an employer seeks to discipline an employee for commentary outside the workplace that arguably impacts the employer’s operations, particularly since states treat the application of the Freedom of Speech guarantee found in the First Amendment differently with respect to private sector employees.  For example, in West Virginia, private sector employees do not currently enjoy protections under the First Amendment for exercising their freedom of speech.

In its press release, the State of Indiana recognized the First Amendment issues implicated in the deputy attorney general’s discharge for his ill-advised tweets, but proceeded with his termination nonetheless.  Before following the lead of the Hoosier state, however, employers would be wise to get up to speed on the rules governing off-duty conduct including the impact of the First Amendment in their respective jurisdictions.

The issue is even more complicated since the National Labor Relations Board seems to have recently “discovered” Facebook and other forms of social media.  As this blog has addressed, the National Labor Relations Board treats Facebook just like the water cooler when it comes to its definition of concerted activity.  Thus, employers may be faced with the illogical situation of being able to discipline employees for their cyberspace ramblings on matters unrelated to the workplace (but which impact the work environment) but not for tweets or status updates aimed directly at a supervisor or operations.

In sum, while Facebook and Twitter have provided anyone with internet access a cyber-bully pulpit, social media has likewise complicated the question of whether the use of those communication tools can be used as a basis for adverse employment action.  In terminating that deputy attorney general, the Indiana Attorney General’s Office noted that it undertook a “thorough and expeditious review” of the situation.  No matter how offensive the tweet or status update may be and no matter how much consternation it may cause in the workplace, employers would be wise to at least follow this example before they do anything which shows they aren’t nearly as progressive in thinking as their employees think they are.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
 
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