Disciplining Employees over Social Networking
It's a tough spot for employers. The concept of "free speech" even if it doesn't really exist in a constitutional sense in a private workplace, is very much a part of American culture. So, companies that crack down on employees who are spewing their opinions about their employers can expect to be vilified by the media and co-workers. But what's a Pennsylvania company to do?
A good first step is to add a social networking provision to an employee handbook. Surely that will not stop an employee from posting some slightly hidden rant on his facebook about his employer but it will provide the company with the support for disciplinary action that it may need to take. As with most discrimination claims in the workplace, the best defense is consistency. When employer discipline is meted out evenly and without exception across the board it is difficult for any individual employee to challenge her punishment as discriminatory.
Employees should be given fair warning that their social networking -- which infamously allows a person to say or do things that he otherwise may not have the courage to say out loud-- is no more protected than if an employee hurled insults at the company president at an office party. And the fact that the employee made the post on her own time, outside of work, does not wrap it in a protective seal.
There are some cases coming down in union settings that signal caution toward employers interfering with their employees right to engage in "concerted protected activity" (i.e. discussion about the terms and conditions of employment). But a well drafted policy with consistent and appropriate enforcement can go a long way toward solving this murky area of the law.