If you are a public sector employer, you may be particularly interested in an article written by my fellow shareholder and practice group member, Marlo Johnson Roebuck. She writes about a recent case, Graziosi v. City of Greenville, involving a police department’s decision to terminate a police officer for statements she made on Facebook.
As Marlo notes in her article, these situations can arise in all kinds of workplaces, no matter the city, state or country, and whether in the public or private sector. Here, Graziosi involved first amendment concerns because the police department is a public sector employer. But there could be a range of other issues that flow from employee activity in social media. These include inappropriate endorsements of company products and services by employees, complying with industry-specific regulatory guidance such as in the finance industry, disclosures of trade secrets, allegations of infringement on protected concerted activity rights under the National Labor Relations Act (NLRA), discrimination under the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA), and so on. Many of these issues and others are discussed in our Special Report – Social Media in the Workplace.
A well-crafted social media policy is a critical starting point. However, businesses need to also consider their game plan when, inevitably, the company learns about activity by one or more of its employees in social media that creates business, legal and other risks for the company. Every situation is different and there will be twists and turns that have to be addressed at the time. However, thinking through certain strategies and approaches ahead of time can help the business to avoid some potentially risky missteps. For example, businesses should (i) consider having a process for determinining whether to investigate, (ii) think about who ought to be involved/coordinate the investigation, (iii) determine whether a third-party monitoring company should be engaged, and possibly develop a relationship with one ahead of time so that it will be ready to quickly step in as needed, (iv) examine whether current policies limit the company’s ability to investigate, (v) identify who should be responsible to manage client and business partner relationships that also might be affected by such an incident, and (vi) set out a plan for how to handle the information obtained in the investigation. By no means exhaustive, thinking through a list like this certainly would help to prepare a company should it need to quickly address a flare up in social media that could have harsh consequences for the organization.