Kent County, Delaware is considering a social-media policy. And, boy oh boy, is it causing quite the stir. Apparently, some opponents only read the headline of the article before concluding that the county is trying to ban employees' use of social media altogether. Of course, that's not the case. The policy does ban use of social media by employees at work--an idea most taxpayers may appreciate.
Other opponents, though, take issue with the part of the proposed policy that, according to the News Journal, would “bar workers from posting materials on or off the job that disparage co-workers, disclose confidential information.” The policy also would create a “duty to report inappropriate use of social media by co-workers or supervisors.”
The article says that employee representatives supported the county’s effort to prevent co-worker harassment or threats of violence but were concerned about off-duty restrictions.
So, is there anything for employer to be concerned about when it comes to employees’ off-duty use of social media?
Yes. Yes. Yes. And, yes.
Maybe an example will shed some light on the risks that, presumably, the County is trying to trying to prevent.
Off-Duty Conduct Counts
Consider the story of Mike Bacsik, MLB pitcher-turned-radio producer. In April of last year, Bacsik tweeted while watching a Mavericks-Spurs game. When a Mavericks player was ejected, Bacsik, a Mavericks fan, tweeted: “Congrats to all the dirty mexicans in San Antonio.” He was suspended and later fired for the racist comment.
Had he not been let go, though, his employer would have faced significant legal risks due to Bacsik’s tweet. Most obviously, it would have sent a message to employees (and listeners) that the station tolerated racist statements and employees who make them. Following that rational conclusion, it would not be a far jump to conclude that the station also tolerated racism in the workplace.
You can bet that, if an employee later sued the station for race discrimination, the employee would have pointed to Bacsik’s tweet as evidence in support of the claim. The fact that it was made from Bacsik’s personal Twitter account is irrelevant—what is said outside the workplace is evidence, period.
In an age-discrimination case, a supervisor’s statement about having to eat Thanksgiving dinner with the “old geezers” was used as evidence to support the employee’s claim of age bias. The fact that the employee was not present at his supervisor’s Thanksgiving dinner to hear the comment was irrelevant—as a supervisor, everything you say—whether it is in the workplace, during off-duty time, or even at a holiday meal—may be imputed to the employer for purposes of proving workplace discrimination.
The Duty-to-Report Requirement Is Essential
The reporting requirement also has some in a tailspin. A duty-to-report provision is an absolute necessity in any social-media policy I write. Employers will be held liable for unlawful harassment that they know or should know is going on. If an employee is being harassed online by another employee, and "everyone" knows about it, the employer will be held liable.
For example, if coworkers know about the harassment because it's taking place on Facebook, and the coworkers are friends with the harasser and the employee being harassed, the employer may be held liable because it "should have known" that the harassment was occurring. Once you know (or should know), the employer has a duty to immediately act to stop the unlawful harassment.
There are only two ways that an employer can satisfy this obligation. First, the employer can monitor employees' online activity. This is not just ineffective but it's also far too intrusive. (Can you imagine what the policy critics would say to that idea?!) Second, the employer can include a duty-to-report provision that requires employees who know about a policy violation to report it, thereby giving the employer the opportunity to take steps to correct it immediately.
The opponents of the proposed policy who contend that it goes too far by addressing conduct that occurs during non-working time should consider attending our annual Employment Law Seminar next week, where they can learn about the many, many risks that can befall an employer as a result of employees' off-duty social-media activities.