|Everyone uses some form of social media whether Facebook®, Twitter®, Snapchat®, or any other variation that is out there or will be out there in the future. Further, advertising has become so sophisticated that at times potential customers can be individually targeted with a brief message posted on their Facebook or other social media. Regardless of the sophistication and the mass use of social media, there is still the issue of an employee’s use of social media during business hours, after business hours and whether it relates to your business, your products or your customers.
Let me start with my previous recommendations. The dealership, by now, should have implemented a social media policy to place restrictions on how, when, where and why an employee can use or create statements on social media. Ideally, the dealership should have one primary individual who will handle any questions regarding what is or is not appropriate for social media communications. Further, that individual should have authority to analyze whether a particular situation is a violation and the consequences, if any. There should be restrictions as to when social media can be used and who is posting. Comments should only pertain to company business and no other business. Prohibited categories should be specifically listed and the employee should not have his/her own individual page on the company’s website.
Also, the company should monitor the social media activities of its employees. Obviously, it is difficult when someone is texting on a private cell phone or posting on a private computer; however, if the text or post deals with company business, then it can be argued that an employee has to follow policy and procedures regarding social media from the dealership’s Social Media Guidelines.
I know monitoring is a broad statement when I state “monitor” social media activities of employees, but if an issue is brought to you or your managers, then you have the duty and responsibility to investigate the employee’s social media posts. The first time you will be alerted to an issue is when one of your managers comes to your office and says, “They said what? Are you kidding me? What were they thinking?” Specifically, a customer or a business associate or a vendor contacted you to inform you that an employee posted disparaging comments. The disparaging posts can be anything of a political, racial or religious nature, or making fun of or criticizing the business or the business’ customers. For example, just recently, a partner at a large Texas law firm “voluntarily resigned” after he made extremely disparaging and derogatory remarks about the U.S. Secretary of Education. The firm’s management partner indicated that 75% of the firm’s attorneys and support staff were female and the comments were inappropriate and created a potential environment that was not conducive to the firm, its integrity or its standards. Obviously, when an employee makes fun of or makes derogatory comments about a customer, this also creates issues with the integrity of the business.
So what do you do? There are several questions that you need to ask and answer regarding the harm to the business. Obviously, matters that deal with employment conditions at the business can be protected under the National Labor Relations Board’s prior rulings. Therefore, you need to determine whether or not the comment or context of the comment violate any federal or state laws. Further, can you show that the comment has in some manner harmed the business or has the potential to harm the business? More significantly, are you willing to terminate other employees for the same type of activity? If not, then it is not safe to terminate the employee in this specific instance. Finally, what does your employee handbook say regarding written policies concerning the behavior? If your written policies address this kind of behavior and if the behavior is in violation of your written policies, then it is abundantly easier to terminate the employment relationship.
As you know, social media tweets, texts and/or postings can have a positive and a negative effect on your business. If a specific message is posted by one of your employees and brought to your attention that appears to be offensive or derogatory, then you must take immediate action in order to resolve the matter. However, as stated above, you need to ask several questions to determine whether or not you have the grounds to terminate the employee and, most importantly, it is strongly suggested you contact legal counsel to affirm your decision.
Robert A. Poklar, Esq.
Weston Hurd LLP
The Tower at Erieview
1301 East 9th Street, Suite 1900
p: 216.687.3243; f: 216.621.8369