Social Networking Strikes Again

October 29, 2010, 3:10 PM

Employers are faced with a broad range of issues associated with their employees' use of social media. One common question from employers is: "Can we do anything about employees posting on their personal social media accounts on their own time?" As lawyers often say: it depends.

The Windsor Locks (Connecticut) Board of Education was faced with this issue when the Superintendent of Schools (a position earning $150,000 in salary per year) posted the following on his Facebook page:

  • He explained that his first day on the job involved "counseling an administrator to retire or face termination," attaching a smiley face emoticon to the end of his post; and
  • He boasted that he slept until 10 a.m. on his first day, and it would be "the best job ever" if that happened every day.
Reaching a compromise, the Board of Education voted to approve a settlement that involved the Superintendent's resignation in exchange for six months of severance pay. Of course, not all employers would agree to severance under similar circumstances, but the specific facts of each case are determinative. Indeed, not all objectionable posts by employees will support disciplinary action and not all employees posting objectionable material will have leverage to counteract legitimate employer discipline.

It is important that employers consider the potential value of regulating and monitoring the use of social media by employees and applicants. In fact, such policies are necessary in the event employers are aware of or even sponsor social media activity among employees. Of course, employers should also be mindful of the risks associated with these practices. To avoid or minimize these risks, employers adopting such policies should make sure that their social media policies are carefully drafted and consistently enforced. --David J. Sullivan