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Social Media and Off-the-Clock Posting (Part 1 of 2)


HR Insights


Posted on 10/25/2018 by Michael Zamora
With social media’s prevalence in today’s tech world, many employers are left feeling victim to scathing social media postings. Many employers are left wondering, can they discipline employees for what they do on their own personal social media accounts?

1. Bad-mouthing the Company or Coworkers
Bad-mouthing the company has one critical caveat. In general, you can discipline your staff for social media comments if they are slanderous (defamation) or engaging in prohibited conduct(s), such as discriminatory/harassing, threatening, and/or menacing language. With that being said, the National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity. Employers who discipline workers for their social media activity may run afoul of the NLRA.

Protected concerted activity gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, this could be misconstrued as retaliation and result in lawsuits.

In short, if an employee’s postings are related to concerted activity, such as questioning or complaining about wages, safety concerns, working conditions, and/or labor laws, they are protected. It is very important that you speak with an HR specialist or labor law attorney to ensure you are not inadvertently disciplining your staff for engaging in protected activity.

2. Bad-mouthing Patients
Like bad-mouthing coworkers, bad-mouthing clients is a violating offense. In fact, bad-mouthing clients can be even more serious because the information divulged could be privacy violations, could be considered harassing, and definitely delivers unacceptable customer service.

3. Trade Secrets and Sharing Sensitive Business Information
Sharing trade secrets or sensitive business information can create financial damage to the company and result in a loss of competitive advantage. However, occasionally employees may not understand the damage that they are doing when they share the practice’s trade secrets in a specialized industry. Best practice would be to implement a concise trade secrets or non-disclosure policy to ensure all employees are aware of unacceptable behavior, and support terminations related to social media posts that forfeit trade secrets. Additionally, reviewing scenarios during orientation may help employees to understand why these actions are unacceptable.

4. Inappropriate, Harassing, Discriminatory Postings
Nothing protects hate speech. Employees are representatives of the workplace—even when they are off duty. Off-duty postings, comments or statements that are insensitive, racist, condemning of a certain religion or political view, or otherwise in bad taste, reflect poorly on the workplace and may necessitate terminating an employee. Since employees may have differing ideas and opinions regarding what is distasteful, it may be helpful to create specific guidelines for employees to follow.

5. Encouraging, Threatening, or Condoning Violence
When employees condone or encourage violence in any way, even when sarcastic or satirical in nature, it must be met with a serious response. Additionally, your employee handbook should address violence in the workplace. Employees should be warned that expressing anything other than sympathy or empathy in regards to a violent situation might be cause for termination. Educating employees on acceptable social media practices can often help to prevent future headaches.

If you feel your Practice may need assistance with any of the above information, please reach out to HR for Health by CLICKING HERE, or call 877.779.4747 x option 1, or email:compliance@hrforhealth.com today!
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