President Trump’s bumpy road to the Oval Office will be remembered for many things, but restraint of tweet and tongue will not be among them. Mr. Trump’s in-your-face social media updates have won him support among voters sick of politics as usual, and he has continued these tactics well past Inauguration Day. Among other things, he has aimed a Twitter tirade at the California courts seeking to overturn his ban on Muslim visitors to the United States.
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE[,]” Mr. Trump tweeted to the 9th Circuit judges in response to their preliminary ruling that the U.S. travel ban violates the U.S. Constitution. While such tweets are now commonplace for the Commander and Chief, it would be corporate suicide for most employees to say the things he does on social media or even in emails.
To avoid missteps, employers should publish — and employees should consult – comprehensive electronic communications and social media policies.
Such policies govern employee behavior on everything from email to Facebook, Twitter, and even instant messaging. The best policies clearly define prohibited conduct in written electronic communications and provide flexible guidelines to permit a free flow of information while also avoiding potential liability to the company. Even seemingly innocent comments can lead to business problems because of the inherent limitations of electronic communications:
- Electronic communications often lack tone and context.
- Viewed in isolation, such comments can miscommunicate the writer’s intent.
- Constant access to Twitter and other media via mobile devices often lead to hastily written comments that cause trouble.
The legal issues that arise from unrestricted electronic communication include claims for harassment, discrimination, and defamation, which can be brought against employers who fail to monitor and respond to improper social media use by employees. Courts have provided guidelines for employers in dealing with such issues:
- Redressing harassment and discrimination – employers have an obligation to address any workplace-related complaints of harassment or discrimination involving electronic communications and social media (Espinoza v. County of Orange, No. G043067, 2012 Cal. App. Unpub. LEXIS 1022 (Feb. 9, 2012): employer found liable for not disabling access to a blog by workers who were posting harassing comments about plaintiff co-worker).
- Appropriately assessing the need for action – employers should determine the nature of the allegations before taking action, and such determinations must be made quickly (Hispanics United of Buffalo, Inc. v. Ortiz, No. 3-CA-27872 N.L.R.B. (Sept. 2, 2011): employee reinstated despite making angry posts on Facebook from home about frustrations with a co-worker because: (1) posts made from home, (2) posts related to criticism of job performance (within rights to discuss), (3) did not mention co-worker by name or criticize employer, and (4) posts did not violate employer’s policies).
- Taking prompt action in clear cases – employers must swiftly respond to claims of harassment or discrimination to limit or prevent liability (Amira-Jabbar v. Travel Services, Inc., 726 F. Supp. 2d 77 (D. P.R. 2010): dismissed claim against employer who promptly blocked access to employee’s Facebook access after learning of workplace harassment taking place on the site).
These cases all illustrate the need for employers to have clear written policies on electronic communication and to promote a work culture that thinks before posting on social media or writing email.
If you have been hurt by electronic communications at your workplace, either due to something you wrote or that others at work wrote about you, then call an experienced employment law attorney for workers. At the law offices of Hanan M. Isaacs, P.C., we offer compassionate counsel and tough advocacy. Call 609-683-7400 or contact us online to make a near-term reduced fee initial consultation in our Central Jersey offices in Kingston. We will listen to your facts, explain the law, and suggest pathways to civil and economic justice that are just right for you. Call today. You will be glad you did.