By SESCO Management Consultants, an NFDA Endorsed Provider

In light of the racial and political tensions in our society today, In light of the racial and political tensions in our society today, SESCO notes that employers need to address inappropriate employee posts on private Facebook and social media outlets even though the employee is using their personal device during non-working time. Any divisive, discriminatory and/or harassing comments/posts can be considered gross misconduct as these inappropriate posts can violate company policy and have an effect on the organization’s good name and reputation. Further, the EEOC has placed a duty on employers for properly responding to such inappropriate, discriminatory and harassing remarks/posts.

SESCO has received a significant number of calls from across the country with concerns about inappropriate posts by employees that have/could inflame the community, the organization’s customers as well as employees. Our advice is to take the matters very seriously and address them immediately. These inappropriate posts and comments are, in fact, your business and they must be addressed whenever they come to your attention by an employee or an outside third party.

Employers are free to discipline employees for online conduct that violates the employer’s articulated policies. For example, if social media posts involve racist or sexual content, employees should be disciplined for violating the employer’s policies that prohibit discrimination and harassment.

While some state laws provide that “political affiliation” is a protected class or that employers are prohibited from terminating an employee for lawful off-duty conduct, online speech that attacks a protected class or constitutes actionable harassment, however, is never protected.

SESCO’s suggestions include:

• Reissue and communicate the organization’s social media, harassment, values and progressive discipline policies immediately.
• Provide diversity training to all managers and employees within the organization. This will include a reminder of the organization’s social media, harassment and progressive discipline policies. SESCO can conduct these inexpensively through Zoom, teleconference or even onsite as you are comfortable.

What employers cannot address are employee posts being critical of pay, benefits or working conditions. These topics are protected by the National Labor Relations Act (NLRA) and as such are off limits in terms of disciplinary action up to and including termination.

If you have questions about how to navigate sensitive conversations with employees or how to implement and enforce policies within the bounds of the law, SESCO Management Consultant is available to help! As an NFDA Endorsed Provider, they offer a free HR hotline from which you can get the answers and advice you need. For more information visit www.nfda.org/endorsedproviders (login required).