Three Questions to Ask Before Responding to Controversial Employee Tweets

Anybody with a Facebook, Twitter, or other social media account has likely witnessed a flurry of political-related activity from friends and family over the past month. Usually this is a topic that comes up during election season, but this year is proving different. Down to the minute, many social media members are expressing opinion after opinion through posts and tweets about the latest developments from President Trump’s administration.

Inevitably, many employers have some of the more provocative social media activity of employees brought to their attention. In some cases, employers may be asked or feel compelled to respond through an adverse action. Even Saturday Night Live isn’t immune in this respect, as it recently suspended a writer over a Trump-related tweet.

Before any employer reacts to an employee’s social media post with discipline or discharge, there are a few basic questions to consider. Of course, every situation is unique, but these “starter” questions highlight some of the main concerns that every employer should consider before reacting to employee social media.

  1. Is the post about the employee’s work?

Employees often take to social media to comment on how they are treated on the job, how much they are paid, and a host of other work-related topics. If a social media post concerns something related to work, the employee could be protected under the National Labor Relations Act or NLRA.

The NLRA, which is the federal law that applies to unions in private workplaces, contains certain protections for employees regardless of whether there is a union in the workplace. Lawyers often refer to these protections as Section 7 rights. They give employees the right to engage in protected, concerted activity. In other words, when employees are participating in a social media conversation or one employee is trying to get others to participate in a social media conversation regarding work, the employees could be engaging in activity that is protected by federal law.

The National Labor Relations Board, which administers the NLRA, has maintained a high interest in cases involving social media and protected, concerted activity. Any employer should find out whether its response may implicate the NLRA before taking an adverse action in response to a social media post.

  1. Is the post about the employee?

Federal law protects individuals from an adverse employment action on the basis of age, disability, genetic information, harassment, national origin, pregnancy, race, religion and sex. These categories are otherwise known as protected classes. The same federal laws also include protections from unlawful retaliation. Generally speaking, unlawful retaliation occurs when an employee suffers an adverse action at work because the individual opposed unlawful discrimination in the workplace or participated in a procedure related to prosecuting a discrimination claim. State and local laws can add significantly to the number of protected classes in your local jurisdiction.

Much of the recent high-profile political activity has concerned issues potentially related to protected class status. For example, President Trump’s executive order on immigration incited a flurry of social media protests. An employer responding to an employee’s post identifying his or her national origin as a basis for opposing political action could land the employer in hot water. Likewise, when an employee relates a political topic to his or her opposition to alleged discriminatory activity, it could also be problematic for the employer. None of this is to say that unlawful discrimination has actually happened, but it may invite the interests of federal and state agencies that investigate employment discrimination claims. In other words, political posts that bring the issue back home to the person or workplace should be treated with care.

  1. How was the post obtained?

A social media post can be so controversial that an employer may not consider how it came to the attention of the company. Two laws are important in this regard.

First, in Wisconsin, like many other states, a recently passed law prevents employers from requiring an employee to disclose his or her user name and password information to a social media account. The law also prohibits an employer from requiring the employee to pull up his or her social media account so it can be reviewed by the employer. This law, known as the Wisconsin Social Media Protection Act, essentially limits how employers can obtain information from personal social media accounts.

Second, a federal law, known as the Stored Communications Act, arguably requires an employer to obtain authorization from an individual before accessing a social media account. The difficult situation where this can most foreseeably arise is where employees save their user name and login information to an electronic device, such as a computer or laptop, which the employer can access. That is, just because someone only has to click “login” or “enter” to gain access to a social media profile, does not mean that they have the authority to access that account.

What is the solution? Relying on information that other employees, who are connected on social media to the employee in question, voluntarily bring forward to the employer’s attention will not run afoul of these laws. For the Stored Communications Act, this has been referred to by courts as “the authorized user exception.”

While these three questions won’t give you all the answers, they are a good start.