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Social Media Fail: Sometimes Even Employers Memorialize Bad Decisions on the Internet

March 8 2016

By: Labor and Employment Group

Don’t deny it: you scroll through your social media feeds past the mundane photos, click-bait, and “humble brags” in search of explosive drama. Eventually, you might land on a status update from one of the reliable “oversharers” on your friends list (we all have them). She was just terminated from her job and decided to air her grievances about her former employer in her status update. Would you be surprised if you saw the company shoot back at her from its own social media page? While it is pretty standard to hear about individual employees making poor choices with respect to their social media posts (an employee who is friends with his or her boss on social media is usually involved), it is less common to hear about employers oversharing on company social media pages.

The influence of social media is undeniable, and more companies are actively using it to market themselves. Last week, a well-known internet company that publishes crowd-sourced reviews and information on local businesses found itself in the midst of a social media fueled public relations nightmare. An ex-employee called out the company on a blog by alleging that the company was inflexible toward her situation as a single mother and that the company ultimately terminated her because she asked for leave to care for her boyfriend while he was recovering from a brain injury.

The company decided to fire back via its Twitter account, and in doing so, it disclosed the number of days the ex-employee worked for the company and the number of days that she was absent. It further went on to state that the ex-employee had multiple warnings and was subject to performance counseling because she was flaky and did not show up to work.

By lashing out online, the company may arguably open itself up to claims for defamation and violation of privacy. An employee in California may bring a defamation claim against her former employer based on false statements that the employer makes after the employment relationship has ended that harm her reputation. In addition, the California Constitution imposes an affirmative duty on employers as the custodians of private information to maintain the privacy of their employees.

Fortunately, hindsight is 20/20, and most employers can use the company’s missteps as a teachable moment. The following are some general tips for employers to consider with respect to their own postings on social media in response to a current or former employee’s complaints.

  • Step Away From the Screen: Have a policy in place in advance with respect to how the company responds (or does not respond) to posts on social media by current or former employees. Regardless of the approach the employer takes, it should be memorialized in a document that everyone who speaks on behalf of the company is aware of. The policy must also be consistently enforced.
  • Keep it Generic: In responding to reference requests from prospective employers, many companies choose only to verify dates of employment and positions held. The same principles can apply to any information that the employer shares about an employee online in response to an employee’s complaints. While it may be best to not respond at all, if the company chooses to do so, the response should be very general: do not include any specific details on the particular employee.
  • Tread Lightly: California law prohibits employers from retaliating against current employees for whistleblowing (i.e., reporting violations of federal, state or local laws or regulations to government agencies or certain people within the company). Additionally, pursuant to federal and state antidiscrimination laws, employers may not retaliate against any person (this includes prospective, current, and former employees) for reporting or opposing an employer’s unlawful practices. Employers and their counsel should first carefully analyze any social media posting to determine whether it falls into either of the aforementioned categories, and then act accordingly.
  • Remember the Golden Rule of Social Media: Post unto others as you would have them post unto you. Okay, so this isn’t a real law, but strict adherence to this mantra may keep you away from controversy (and any resulting legal actions).

Of course, there is no fool proof method for dealing with social media, but the above tips may diminish some of the risks that are associated with its use. The decision of what to do in response to a current or former employee’s negative social media post involves a careful assessment of the benefits and risks by the respective employer and its legal counsel.