MAY 2013 NEWSLETTER

HOW AN EMPLOYER CAN PROTECT ITSELF FROM AN EMPLOYEE’S FALSE ACCUSATIONS IN SOCIAL MEDIA

Social media has become a constant presence in people’s everyday life with websites such as Twitter, Facebook, Google+, LinkedIn and various industry related online public forums becoming commonplace. Social media allows individuals to broadcast their every thought, from the mundane to the important, to thousands of others. This can lead to conflicts in employment when employees begin to publicize and vent their complaints about their employer or coworkers over various social media websites.

This could even lead to an employee making false accusations, including, but not limited to, false accusations of discrimination relating to product quality or the non-reporting of income. 3 Damaging accusations could easily be spread throughout the employer’s community and quickly impugn the reputation of the employer and its products. False accusations made by an employee can arise from any type of situation, such as retaliation for not being promoted, mental instability, thoughtlessness, or possibly a distorted view of the situation. What, if anything, can the employer do to stop or minimize the damage from such employee’s false accusations?

I. Prevention: Stop False Accusations Before They Start

Prevention is the best strategy for employers to minimize any possible false accusations by employees. The best way to do this is through having a code of conduct or an internet/social media policy, which all employees should sign and acknowledge as a condition of employment. These policies should give clear examples delineating the line between appropriate and inappropriate social media usage.

A social media policy should clearly state that actions on employer provided equipment (e.g. cell phones, laptops, or internet access) may be monitored or there may be an absolute prohibition of non-work related uses of such equipment. Additionally, the policy should state the investigative and disciplinary procedure for any employees found to be making false accusations, including possible termination and/or a defamation lawsuit with damages. Employees will have a clear guide of how violations of the employer’s social media policy will be consistently handled by the employer.

However, employers must ensure that the policy complies with federal, state, and local law. The National Labors Relations Board (“NLRB”) requires that such policies be narrowly tailored and do not generally ban an employee’s ability to discuss the terms and conditions of their employment. Overly broad policies are prohibited, but a policy may contain language that the employee should be honest and accurate in their postings, quickly correct any mistakes and avoid posting rumors or knowingly false information. Furthermore, certain states, such as California and New York, have off duty protection laws that prohibit the firing of a worker for certain off duty activities. Thus, policies should be reviewed by an attorney to ensure the policy adequately protects an employer and does not violate any state and local laws or NLRB requirements.

Another preventative measure is to create an open channel to allow employees to communicate their frustrations internally to their employer without having to turn to a public forum, such as facebook, to vent. This allows an employer to identify employee complaints and remedy and improve the workforce without subjecting the employer to negative publicity and attention that occurs when frustrated employees use social media to voice their frustrations. While this may not remedy all employee complaints, it will provide both employers and their employees an avenue to work together and resolve any issues.

II. Damage Control: How To Minimize Damage From False Accusations

Even though the best way to minimize the risk is through prevention, if the false accusation has already been made, there are actions an employer can take to respond to such false accusations. An employer can take four general measures: (1) terminate the employee; (2) bring a defamation suit against the employee; (3) ignore the posts or accusations; and/or, (4) attempt to mediate or settle with the employee. Each approach can have various benefits and consequences and an employer’s approach should be carefully tailored to best fit the situation.

An employer’s first inclination may be to simply terminate the employee. However, depending on the situation, such actions could be construed as an unlawful retaliation and subject the employer to liability and litigation. The employee may be a part of a protected class due to his/her age, color, race, sex, national origin, religion, or medical condition. Additionally, many states protect employees from terminations due to certain “off duty” conduct and the NLRB will punish employers for limiting employees’ “concerted actions” of discussing working conditions and wages. It is important to ensure terminating the employee will not subject the employer to liability.

The second option is to bring a suit for defamation against the employee to stop the employee from making further false accusations, require the employee to remove the false accusations already posted, and require the employee to pay monetary damages. However, employers should be cautioned that the time and cost involved in bringing a defamation suit may not justify the suit and the employer may not be able to meet it high burden to prevail on a defamation suit. Further, even if there are substantial monetary damages, the employee may not have the resources to pay any awards.

The third option is to simply ignore the accusations. The exposure of the accusations and the credibility of the accuser may be low enough that reacting to it will draw attention to the matter which was largely being ignored beforehand.

Lastly, an employer may try to mediate the situation and communicate with the employee. If the employee is simply upset about how a manager acted and a simple apology or explanation will cause a retraction of attacking posts, this may be the simplest option. However, the mediation may backfire, if the relationship with the employee has soured past the point of repair. Employers should be cautious not to admit any type of liability or fault during these mediations which could later subject them to liability.

Please contact the offices of Pozzuolo Rodden, P.C. if you wish to take preventative measures to protect against false accusations by employees or if you wish to take action due to any false accusations made against you.