Picture this. You arrive at work only to be met by the employee who always seems to know everything about all that’s going on and that person hands you a copy of the “tweet” that another employee posted right before arriving at work this morning. The tweet reads: “Whoa, just ran someone over on my way into the office. Hope he’s OK.”
A few minutes later your local police department calls and asks to interview the employee. A few minutes after that—the President of your company storms in and says he’s gotten several calls from suppliers who heard about the incident and are demanding that something be done about it.
What to do? What to do? First. Investigate.
What not to do? Panic.
You call the employee in—and the employee sheepishly tells you that the tweet was a joke and that he had actually taken the train to work that day, and did not drive. Now what?
This actually happened at the end of last year. A British company learned that its employee had sent a fake tweet similar to the one above and fired him.
Some called the action excessive. Others felt that it was appropriate given the poor judgment of the employee (not to mention the fact that the tweet went viral and was retweeted over 150 times).
But let’s break this down a little bit and identify some things to consider in the event something similar happens (heaven forbid!).
- Did it happen? Confirm with the local law enforcement as to whether an accident occurred. If your employee is lying to you – well that’s a significant factor to consider.
- What did the employee say? Or rather, what was the subject of the tweet (or the blog post, or the Facebook Post, or the Instagram Picture, etc.)? Did the employee say something that otherwise violates some other company policy? (Did he publish a trade secret? Did he communicate financial information in violation of SEC rules? Did he say something harassing or discriminatory?). If yes to any of these, then there might be cause to discipline the employee (yes, up to and including termination).
- Wait! Did the employee say something that might be considered “protected concerted activity?” (See our earlier blog post about what that means.) If yes: call your legal department (or your favorite Seyfarth lawyer). As we’ve blogged about before, discipline for social media conduct is very high on the NLRB’s radar – perhaps better to fly under that radar for the time being.
If your hypothetical employee has not been self-eliminated yet – ask a couple of more questions:
- Who is the employee? In other words, what role does this employee play within your organization? Does the employee regularly engage in social media as part of his or her job duties?
- Did the employee identify herself as your employee in the social media account she uses? (Remember Justine Sacco, the media representative who tweeted an offensive statement before leaving for South African and was promptly sacked shortly after landing in South Africa?) As one article put it: “Her whole job revolved around communicating with reporters—which made her Twitter comment about Africa all the more shocking.”)
It’s appropriate to consider what role the employee plays within the organization when making any disciplinary decision. If it’s an employee who “should have known better,” it’s OK to factor that into your decision.
It’s probably not appropriate to consider the opinions of the media or general public (they always want to burn the witch don’t they?). It’s a closer call when it comes to your clients or customers; should it be a factor–sure, but probably shouldn’t be the only factor.
OK, let’s return to the scene of the crime – hold on – there was no crime. Remember, our hypothetical crime did not happen; the employee claimed it was a joke. So, now what? Well, go back to the drawing board, or in this case, your policies and procedures. Do you have a Code of Conduct? Do you have a social media policy? Do either of those identify conduct that this employee violated? (See our first discussion points above).
Is there anything wrong with terminating someone for simply exercising bad judgment? No, provided that the decision is not otherwise motivated by some other discriminatory intent or in response to some other protected activity (i.e., not retaliatory – see our blog post on that topic). Each situation (like any other disciplinary scenario) has to be considered both in the context of the individual events as well as how the company has reacted to other employee misconduct. Consistency is a key factor in fending off otherwise messy employee litigation.
Was the decision to terminate the British employee excessive? That’s probably one best left to the court of public opinion.
If you have questions about this topic, please contact the author, who is also a member of Seyfarth’s Social Media Team, or your Seyfarth attorney.