Investigating Workplace Social Media Use? Know These 5 Things.

[vc_row][vc_column][vc_column_text]With advances in technology, managing employees’ use of social media in the workplace can be tough.  Managing employees’ use of social media outside of the workplace can be even tougher.  The next time an employee walks into your office to report inappropriate social media content published by another employee, start your investigation with the “5 C’s” to get you moving in the right direction.

1. Collect Evidence.  Collect and preserve social media content that violates your policy when it is capable of being viewed online without violating passwords or restrictions set by the content creator.  Employees have long utilized electronically stored information, such as email, as evidence against employers in employment disputes.  Make sure you return the favor by collecting and preserving social media content that may be relevant in the event your company is forced to defend itself against employee action in the future.
2. Conversation.  A conversation with the employee may help determine whether the social media content was misconstrued or misunderstood by your informant.
3. Consider Protected Status.  Consider whether the social media content reveals information regarding a protected status.  This may impact your decision-making process.  For instance, if a Facebook post reveals an employee consumed alcohol in close proximity to a scheduled shift and you want to terminate the employee based upon this information, your decision may be impacted if the employee checked into a treatment facility prior to your discovery of the social media content.
4. Concerted Activity?  Determine whether the social media content constitutes concerted activity.  The National Labor Relations Board continues to be aggressive in scrutinizing the regulation of social media use.  Section VII of the National Labor Relations Act gives employees the right to engage in “concerted activities” for their “mutual aid or protection.”  Protected concerted activity generally occurs when employees act together to address collective employee concerns about work terms or conditions, which may include hours, pay, benefits, or safety issues.  If you find two or more employees discussing work terms or conditions via social media, proceed with caution.
5. Consistency.  Circumstances warranting discipline or termination are almost always unique.  Do not let consistent enforcement of your policy fall victim to this difficult reality.  Consistent enforcement is key to any employment policy.  Oftentimes, inconsistent enforcement of a policy causes more harm than not having a policy at all, as it may be used against you later as evidence of unlawful intentions.  If you believe a situation warrants deviation from past practice, document the specific facts you believe justify your decision and be prepared to explain your position.

Keep these “5 C’s” in mind when it comes to analyzing social media content and applying your company’s policies to get your investigation off on the right foot.

For additional guidance on drafting social media policies, regulating social media use, or making hiring, discipline, or termination decisions based upon information obtained through social media, please contact any member of the KDDK Labor and Employment Law Practice Team. [/vc_column_text][/vc_column][/vc_row]