The employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor (“DOL”) compliance, as well as guidance on preventing and responding to discrimination and harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). Our employment attorneys also regularly update clients on news, events, and changes in law as it relates to labor and employment issues that may impact our clients.
Social media plays a major role in the employer-employee relationship. An employer’s social media policy, along with what an employee posts on social media, impacts the employment relationship. Overall, an employer cannot have a social media policy that restricts or hinders what an employee can or cannot post to social media. But, an employer can take action against an employee who makes factually false or disparaging comments on social media that is either about the employer or that is related to the employer in some way. Thus, an employer’s social media policy can include some limitations. A difficult issue that employer’s now face is determining what the employer can do in response to an employee’s defamatory statements on social media, specifically if the employees post content unrelated to the employer.
Can the employer use an employee’s social media to terminate the employee?
As stated previously in the blog titled “Employer Social Media Policies: What Provisions Are Allowed”, the employer can terminate an employee if the employee posts negative and false statements about the employer, specifically if the post can cause damage to the employer directly or can damage the employer’s reputation. General posts about the employer, or posts that are true statements, are protected, however, the employer cannot limit this content, or take action against the employee.
The law is conflicting as to how an employer can respond to the social media content of an employee, when the content includes subject-matter unrelated to the employer, and when the content has the potential to cause a negative effect to the employer. The Eight District of Ohio upheld an employee termination where the employee posted a racially and sexually offensive video on their social media account after work hours. Glenn v. Hose Master, L.L.C., 61 N.E. 3d 609 (8th Dist. 2016). In that case, the employer received an email from an unknown source with the video of the employee attached. Based on the content of the video, the employer terminated the employee. It should be noted that the employee’s video was recorded on the property of the employer, however, the employee was not wearing his uniform nor did the name of the company appear anywhere in the video. The employer felt that even though the name of the company was not seen in the video, there was a chance that the employer’s reputation could be damaged because it was filmed on the employer’s property. Thus, there are some situations where content posted on an employee’s social media account, which is unrelated to the employer, can lead to termination.
Nardone Limited Comment: A court’s determination of whether a termination is lawful will ultimately depend on the content of the post. In this instance, when you have an employee discussing racially or sexually offensive content, it makes it easy for the court to side with the employer. But, a court’s determination will always depend on the specific facts and circumstances of the particular post.
Generally, for the employer to take action against an employee for social media content, the content must relate to the employer in some way, and, the post must be false, or it must have the potential to negatively affect the employer. General posts about the work environment and the employer, or true statements made about the employer, are protected and the employer cannot take action against the employee. Lastly, as a general rule, the employer’s social media policy cannot restrain or limit the content of the employee’s posts. The employer can take action only after an employee posts on social media, and the appropriate course of action will vary depending on the content posted to social media and the specific details surrounding the situation.
Contact Nardone Limited
If your business has questions about its social media policies and the provisions that it should include, contact the attorneys at Nardone Limited. The employment attorneys at Nardone Limited are well versed in drafting social media policies and employee handbooks. The employment attorneys at Nardone Limited can also handle a full spectrum of employment law issues, including business disputes and litigation, drafting employment and restrictive covenants, and consultation on employment law issues. If you need advice or representation in an employment dispute before the EEOC, the OCRC, or regarding potential labor and employment litigation, feel free to contact Nardone Limited.