Ask the Pro: Offensive Social Media Posts - Free Speech or Harassment?

by Mammoth Team on February 2, 2016

offensive-social-media.jpgQ: An employee’s recent public Facebook post contains negative statements directed toward a minority group and has caused a stir at the office. It is her private Facebook account, but on it she identifies herself as working for our company. Co-workers and clients have told me the post is offensive and hurtful. I am also worried about it being associated with our company. How should I respond?

A: This is a very difficult issue. While an employee has the right to hold views that are unpopular or offensive to co-workers or clients, the employee does not have the right to disrupt the organization's operations, harass other employees, or create a hostile work environment. As the employer, you are caught between your policies and laws that prohibit discrimination and harassment and laws that protect an employee’s speech (NLRA and Title VII religious protections).

Here are some options you may consider.

If the employee made no threats or statements about co-workers and is not a supervisor, you could hold a meeting with her (and a third party witness) to explain the reaction the post has caused and ask her to voluntarily make the Facebook page (or post) private. Make it clear that you’re not disciplining the employee and that your suggested course of action is voluntary. Communicate that you’re not trying to curtail free expression, but are concerned that her views may be misinterpreted as the organization's views based on her identification of herself on the page as your employee.

Alternatively, you may elect  to let this go and take no action. Anyone who does not care for such speech could always choose to unfriend or stop following the employee on social media. This may be your safest option.

If the employee’s post is harassing, identifying, or disparaging co-workers, clients, or vendors, or if the language itself incites violence or is hate-speech, then you would have more cause to intervene, with disciplinary action if necessary. Additionally, if the employee is a supervisor, then you may have more leeway to take action. Given the difficult balancing act and degree of risk in a situation such as this, if you do decide to take disciplinary action or to terminate, we’d recommend you involve legal counsel.

Going forward, we recommend creating a social media policy if you don’t already have one. The policy should prohibit discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct. With a social media policy in place, you have a clear and concrete standard to which you may hold employees accountable.

Topics: Compliance, Best Practices