My post yesterday focused on the background facts and legal issues from the Tatro v. University of Minnesota decision issued last week by the Minnesota Court of Appeals. You will recall that the University disciplined a student for a post on Facebook referencing the desire to “stab a certain someone in the throat” with a lab instrument. From an employment law perspective, I am happy to see a case with facts and legal analysis that parallel so many of the fact scenarios I see every day. Not that I see threats to stab someone everyday, but I regularly see conduct that is perceived as threatening to the Company itself or “raging” at another employee.
So, now I will briefly depart the facts of the Tatro decision to address those similarities. Let me change the fact pattern slightly to something more familiar to all employers:
- Employee posts inappropriate, disrespectful, threatening or rageful statements about the workplace;
- Another employee prints the posts and brings them to Human Resources (“HR”) stating that the posts “bother” them and thought HR should know about them;
- HR goes online to see whether they can independently confirm the posts (often times the sites have no privacy settings, so HR can view the posts themselves);
- HR calls me to discuss disciplinary action;
- We complete an investigation and review policies, rules, and codes of conduct (most of the time we find other inappropriate, disrespectful posts and several other employees who knew about them and were bothered by them);
- Employee has signed for policies, including an online behavior policy, and agreed to read and abide by them (which includes examples of inappropriate behavior);
- We conclude whether discipline is appropriate or whether we ignore the post.
Now, look back at yesterday’s post (Minnesota Facebook Decision – Confirmation That Employers Can Discipline for Inappropriate, Disrespectful or Threatening Conduct on Facebook?)… not so different, right? Just like in Tatro, an employment evaluation of inappropriate posts often centers first upon the severity and impact of the conduct, and then upon an analysis of the rules and policies applicable to the situation:
- How bad are the posts and what is the employer’s gut reaction to the posts; are they threatening or do they merely demonstrate disrespect?
- What is the employee’s explanation of the posts?
- How have other employees responded to the posts?
- Do other employees feel threatened or harassed?
- Did the employer provide the employee adequate notice of the employer’s expectations of appropriate behavior?
- Did the employee acknowledge and agree to abide by policies relating to harassment, appropriate conduct, and/or computer use?
- Does the employer have a computer use/social media policy that addresses online behavior, even outside of the workplace, that might significantly impact the workplace?
Now that we know what an employment evaluation of inappropriate posts look like, let’s go back to Tatro. What did the University do right and what can employers learn from this decision? First, the University had rules and policies in place about appropriate student conduct. Review your rules, policies, and lists of prohibited conduct. Do your employees know your expectations of them when it comes to online communication?
Second, the University had its students acknowledge receipt of those rules and policies. The Court of Appeals focused on this fact when determining whether Tatro had notice of those policies and rules. In litigation, it is always preferable to have a signed acknowledgement, which includes an agreement to abide by the rule or policy. Most human resource practitioners know this, but this decision reinforces the importance of this practice as it is sometimes overlooked in the rush of getting paperwork signed by incoming employees. Additionally, it reinforces the importance of maintaining the original signed copies of any type of agreement (including non-competes, non-solicits, non-disclosures, or confidentiality agreements).
Third, the University had a compelling reason to take appropriate disciplinary action. As noted yesterday, the Court of Appeals acknowledged that “the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence.” Employers too are becoming increasingly vigilant about inappropriate behavior, and more sensitive to the impact of inappropriate, disrespectful and threatening conduct on employee morale and teamwork. They are also very aware that such conduct can lead to potential claims of harassment, bullying or hostile work environment.
As such, most employers want to take appropriate action in response to questionable Facebook posts, many just like the ones posted by Tatro. The Tatro decision confirms for me that Courts will support disciplinary action so long as employers place employees on notice of the policies, rules and guidelines which govern such conduct.
If your employee posts a questionable statement on Facebook, are you prepared to deal with it?