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- You get to choose what is in your company policy so take care to decide how to discipline an employee when unacceptable content is posted on social media
- There are many features on social media that identify protected classes meaning that said individual can’t be fired for content based upon these classes
- Some items that are protected include race/color, sex, religion, age, gender identity, marital status
“Social media is like so cool, right?!” Ehhh, yeah it can be a great tool, but it can get really annoying. You don’t think about what your employees are posting on their Facebooks or Instagram, nor should you even really care. That is until of course one of your employees posts something completely inappropriate. Now it becomes your problem…let the headache begin. But what do you do? How do you handle the situation when an employee posts something inappropriate on their social media profile?
Can I Fire Someone Because of What They Posted?
The first question you’re going to ask yourself is…”So can I just fire them? Or?” Well, you could, but it really depends on your policy. Hopefully by now you’ve heard us stress the importance of a company policy and have implemented one of your own, because what that company policy does is layout the rules and expectations you have for your employees.
Lets say there’s a scenario where Jane post a picture of herself, on her social media account, intoxicated at a party while holding an adult beverage. Unfortunately for her, her boss sees it and immediately decides to fire her. But Jane makes an effort to dispute the firing. But while attempting to dispute her firing she discovered that there are rules and guidelines regarding social media and how her company wants their employees to portray themselves on social media, because they see it as a reflection of their company. Since Jane’s boss had the expectations outlined in their company policy, Jane was fired.
In your company policy you will need to have a clear cut out rule or guideline for the expectations you want to hold your employees to. You get to choose what you want in your policy so you decide if you can fire someone for what they posted on social media. Well assuming it’s not on the list of things you can’t fire someone for…but we’ll get to that later!
What’s a Fireable Offense
So what’s a fireable offense? Well, it depends on what’s in your policy. You get to decide what you want to be a fireable offense, and it’s very important you have this written out and set in stone to follow the bronze rule. Cover your… well, you know the rest.
So why is it so important to have a clear guideline to what fireable offense are for your company? You know besides our little bronze rule above…well consider this:
In 2013 David Guth, a professor at the University of Kansas, made the tweet below in regards to the Navy Yard Shooting.
Immediately after posting this KU attempted to fire David Guth. But emphasis on “attempted”. Because KU did not have a clear cut rule in their policy about posting content of this nature, the school did not have sufficient enough cause to fire David, so he was able to keep his job. The point is, you need to have your policy prepared and up to your standards. You don’t want to be caught off guard or not have a leg to stand on to back up your company’s decisions on how to handle what your company deems as inappropriate and a fireable offense.
But You Can’t Fire Them For This
So before you get too strong with power, there are limitations. You’re not able to just fire an employee for anything on their social media. Below is a list of a few things an employee can post on their social media pages without having to worry about any penalty due to the protected classes or speech.
- National Origin
- Genetic Information
- Sexual Orientation
- Gender Identity
- Marital Status
- Discrimination/Harassment Complaints
- Union Activities
- “Whistle Blowing”
- Work Comp History
- Political Affiliation
- Military Status
- Protected Leaves
- BankruptcyFillings/Credit difficulties
- Criminal Conviction
This information is protected for employees because of the nature of the information. The examples given above are protected information by the Fair Credit Reporting Act (FCRA) meaning they can be said or posted and the company cannot use this information to fire them.
When creating your policy be sure to keep the list above in mind. It’s understandable to have standards set that you want your employees to adhere to. But your employees still have rights and protected information they are allowed to express on their private social media accounts.
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*The contents of this blog are not legal advice and should not be relied upon as such.