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How to Discipline Misconduct Related to Social Media

Author: Louis R. Lessig, Brown & Connery, LLP

Employers are in an uncharted area with the continuing evolution of social media, its increased use in the workplace for personal as well as work purposes and with attempting to figure out how to handle what had previously been simply perceived as misconduct. Moreover, what is considered work time or how far the reach of an organization may legally stretch into employees' zones of privacy is morphing into something that is as of yet not fully defined.

This constantly changing medium brings with it an entirely new set of challenges to the disciplinary arena. For example, prior to the rise of social media, if an employee working in a non-union setting made a statement about his or her salary publically and the employer had instructed him or her not to do so, such an action may have resulted in termination. However, if the same event occurs through social media the result may be different.

If an organization is using some type of social media to drive business in any form, whether it is marketing, finance, sales or recruiting, it would be advisable to adopt a formal social media policy so the entire organization is clear in its understanding concerning the expectations of engaging in this medium and provide as much specificity as possible. While social media use continues to expand, there are ways in which an employer may carefully navigate the investigatory and disciplinary landscape and successfully support and manage its workforce, while simultaneously navigating around the potential legal missteps.

An employer should consider following the steps set forth below because of legal challenges and the depth to which organizations and their HR professionals must be prepared to evaluate specific situations.