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Trashing customers online: It hit the fan and your employee threw it

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by Jo Ellen Whitney

You’ve heard the nightmare stories: Some employee tweeted or posted something that embarrassed his employer or shined the spotlight on the company and drew it into the national debate over social and political issues. In one recent example, ESPN “SportsCenter” anchor Jemele Hill tweeted that fans of the NFL should boycott vendors and advertisers to protest Dallas Cowboys owner Jerry Jones’ promise that his players would be benched if they knelt during the national anthem. Hill had already provoked a reaction from her bosses and thousands of social media users over a previous tweet in which she called President Donald Trump a white supremacist. After the Jones tweet, she was suspended for two weeks. 

Hill’s tweets and several other social media flaps over the last year have spotlighted the impact social media can have on your customer base. So what should you do when your employees speak out online?

Be careful when crafting social media policies

Of the various governmental agencies that concern themselves with employment practices, the National Labor Relations Board (NLRB) has been the most active in addressing workplace social media policies. The NLRB has been very clear that social media policies cannot restrict employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to discuss issues related to their conditions of employment. The Board has consistently rejected general civility requirements (e.g., “Be polite”) as inappropriately dissuading employees from expressing their thoughts and opinions on workplace conditions.

When Hill tweeted about the president and the NFL, she wasn’t talking about the conditions of her employment. Rather, she was commenting on broader social issues, using somewhat inflammatory language. The NLRB has supported social media policies that prohibit employees from directly denigrating their workplace or the products their employer offers.

For example, an employee who works in a hospital can’t say, “This hospital kills people,” although she can say, “The working conditions at this hospital are terrible.” Some comments simply make it impossible for an employee to do her job, undercut the customer confidence in the business, or inhibit the business’s ability to function or maintain its customer base. Carefully crafted policies can help employers address those issues.

Social media posts may create employer liability

Hill’s suspension also highlights another concern for many employers: Most employment decisions shouldn’t be made on Twitter, publicized in a significant way, or involve the president of the United States. Strip away the subjects of Hill’s tweets and insert the name of one of your customers. An employee who uses inappropriate language or calls clients or customers names can render herself unable to do the job and leave your company open to liability.

In a recent case from Hawaii, a customer alleged that Hertz was liable under a negligence theory for its employees’ inappropriate Facebook comments about him. The rental car agency’s employees exchanged multiple Facebook posts about the customer’s financial status, his credit card being rejected, and similar topics. The customer claimed that their comments damaged his reputation and that Hertz failed to properly supervise and train its employees, thereby allowing them to engage in the inappropriate conduct.

Hertz was eventually granted summary judgment (i.e., the case was dismissed without a trial), but that doesn’t mitigate the issues that were raised in the lawsuit. Judge Susan Molway addressed many of the underlying complaints raised by the customer, including the duty Hertz owed him. One factor in her decision to grant summary judgment was that Hertz’s supervisor wasn’t aware that employees had been posting inappropriate comments about the customer. That won’t be true in every case.

Communication and training are key

You might become aware of an employee’s inappropriate social media posts, not because you’re regularly reviewing Facebook or other social media platforms, but because other employees report the issue. Your social media policy should include a reporting procedure that clearly designates the management employee to whom reports should be made and explains how you will investigate any reports. Then, you must ensure those procedures are followed every time you receive a report of employee misconduct on social media.

The Hertz customer also alleged the company was negligent in training its employees on their duty to customers with regard to their social media use. While the court found that general claim amorphous, employers in many industries, such as health care and finance, must comply with specific government regulations addressing privacy and security. For example, long-term care facilities and other employers that must safeguard personnel information are subject to guidelines on employees’ social media use promulgated by the Centers for Medicare and Medicaid Services (CMS). For those employers, training is not only critical but also required by law.

Bottom line

The national debate over politics, race, socioeconomic status, and whether Cyclones are better than Hawkeyes isn’t going away anytime soon. A well-crafted policy can help you communicate the importance of using social media responsibly and provide clear-cut guidelines for appropriate employee behavior. Keep your policy simple and clear, train employees on it, and enforce it. Here are some of the topics you might want to cover:

  • Keep confidential information confidential.
    • Protected company information should not be shared outside the company.
    • Patients’ and residents’ information should not be posted online or shared in any way.
    • Information about wages, hours, and benefits is not protected.
  • Be respectful.
    • Do not post insulting or inflammatory content about others for any reason.
    • Make it clear that any views expressed online are yours alone and do not represent the views of your employer.
  • Do not break the law.
    • Do not post pictures or other information about your participation in illegal activities or anything that implies you engage in such conduct.
    • Do not bully, harass, or retaliate against coworkers, vendors, or customers.
  • Protect your privacy rights and the rights of others.
    • Be cautious about how you share personal information. You never know how it will be used.
    • Do not post pictures of, or personal details about, patients, residents, or others whose data is protected by law.
    • Stay mindful of privacy laws like the Health Insurance Portability and Accountability Act (HIPAA).
    • Do not destroy personal media without approval if it has been used to create, transmit, or store work-related data.
  • Standards of conduct apply to online posts.
    • Any conduct that would be grounds for dismissal at work will be grounds for dismissal if it’s engaged in online and/or in relationship to work.
    • What belongs in the medical record goes in the medical record, not on a social media platform.
    • Don’t comment on competitors without express permission from the company.

Jo Ellen Whitney is an attorney with Davis Brown Law Firm in Des Moines, Iowa. She may be contacted at  joellenwhitney@davisbrownlaw.com.


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