It's Monday morning and you are going through the seemingly endless list of unread emails that have accumulated in your inbox since you left last Friday afternoon. As you scroll down the list, one catches your eye. The subject line reads: "FROM A CONCERNED CUSTOMER!" Attached to the email is a screen shot of a tweet that states, "[racial slur] immigrants go home." You see from the screenshot that the tweeter's Twitter profile indicates that he works at your company, a fact that you confirm by checking the company's employee directory. The sender explains that she is a patron of your business and demands that you "take action" or she will contact the media. What can you do?
Employers frequently confront situations in which employees or ex-employees post damaging comments on social media. Almost every company employs at least one social-media user. According to an online survey of Americans conducted by the Pew Research Center in 2016, roughly one quarter of adults use Twitter, and roughly eight in 10 use Facebook. Americans increasingly also rely on social media for news. In 2016, the Pew Research Center found that 62 percent of U.S. adults get their news from social media. As a result, a provocative social media posting may go "viral" as users share what they consider newsworthy, regardless of whether the posting is true. Unfortunately, the phenomenon of "fake news," which drew much attention in the run-up to the U.S. presidential election, applies to companies as well as politicians. An angry employee's defamatory post about the company, for example, may quickly reach millions of social-media users.
Request that the individual take down the post.
If the individual responsible for the offensive post is a current employee, the first, and perhaps easiest, course of action is to request that the employee remove the post from his or her social media page. This request alone, however, could raise some issues.
If the post discusses the employee's terms and conditions of employment — for example, an employee's tweet complaining about wages or workplace conditions — it could potentially qualify as protected activity under Section 7 of the National Labor Relations Act. In that case, the employer's request that the employee take down the social-media post could be deemed an improper attempt to interfere with the employee's rights under the NLRA. For public employees, the First Amendment provides additional protection. If the employee's statement includes a "matter of public concern," the posting may be protected under the First Amendment.
Of course, the employee may simply refuse to remove the post. The question then becomes whether the employer can choose to discipline the employee for the post. Discipline too may entail other concerns. If the post is protected under Section 7 of the NLRA, disciplining the employee could constitute an unfair labor practice. Moreover, if the social-media post discusses illegal or improper workplace activity, the disciplined employee could allege retaliation or that the company attempted to prevent "whistleblowing." Again, public employers could potentially violate the First Amendment by disciplining an employee based on his or her speech. Also, at least one state extends First Amendment protection to private employees. In Connecticut, all employers are prohibited from disciplining an employee for exercising his or her First Amendment rights.
Even if discipline does not directly violate state or federal laws, employers may run the risk of a discrimination claim if they discipline employees inconsistently for their social-media activity. Employers can potentially reduce this risk by maintaining a social-media policy that provides clear guidance to employees on prohibited social-media activity. When addressing an objectionable post with the employee, the employer should reference the specific policy provision that the post violated.
Request that the employee not identify as a company employee on social media.
If the post is on the social-media page of an employee whose page also reveals his employment relationship with your company, asking the employee to remove his or her affiliation with your company is another option. While this will not resolve the issue of the offensive post, it may prevent a worldwide audience from associating the offensive comment with your company.
Before making this request, employers should consider whether the posting is protected by the NLRA. The National Labor Relations Board takes the position that employees sometimes need to reference the employer's name, and even the employer's logo, when exercising their right to discuss their working conditions. Consequently, the NLRB could find that the employer violated the NLRA by asking the employee to remove references to his or her employment at the company.
In addition, an employee may have to include information about her employment status on the social-media site if she posted statements endorsing her employer's products or services. Endorsing a company's product or service without disclosing a material connection to the company may constitute an unfair and deceptive trade practice. In that case, depending on the employer's role in the endorsement, not only the employee but also the employer could be liable for violating state and federal trade practices laws.
Request that the website take down the posting.
Most social-media sites and user-review websites provide a mechanism for users to request that the site take down posts because of their interest in providing platforms free of threatening, obscene, defamatory, and otherwise problematic posts. If a site refuses to take down a post, however, the employer has little recourse. The Communications Decency Act protects website operators from civil liability arising from third-party content posted on the website, even if the content is obscene or defamatory.
The CDA's grant of immunity from civil liability is not absolute. The CDA does not extend immunity to websites that violate intellectual property laws. For instance, a website operator may be liable for failing to take down posts that infringe copyright. As a result, companies that can demonstrate that a post violates their copyright will have a higher chance of success in getting the post removed.
Employers should not conclude that they should claim copyright infringement every time they make a take-down request. A federal court recently ruled that copyright owners must consider whether the use of their copyright is a fair use before requesting that a website remove copyrighted content posted by a third party. If the copyright owners do not consider fair use, they could potentially be liable to the party that posted the copyrighted material.
Take legal action against the individual responsible for a defamatory review or social-media post.
While a company is unlikely to succeed in a legal action against a website operator for hosting a defamatory post, the company may still succeed in a legal action against the individual responsible for the post. At least one user review website will consider a court order declaring a review defamatory when determining whether to remove a user's post. Before considering this option, however, the company must make sure that it has a sound legal basis to file a claim. A company runs the risk of incurring monetary sanctions for filing a lawsuit that is later deemed frivolous by a court.
When a company is unable to remove a post using one of the above methods, its only recourse may be to address the post by issuing its own response. In many cases, this is the best approach at the outset. For example, taking legal action against an ex-employee for his defamatory post may only further anger him, leading to more objectionable postings.
Finally, a company that chooses to counter a post publicly should emphasize that these comments do not reflect the company's values; explain that the company takes the issue seriously and, if necessary, will investigate; and avoid escalating the situation with counter-criticisms or legal threats.
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