The advent of social media is rapidly changing the way we live and relate to each other and those changes have crept into the relationship between the employer and the employees. The tweets, Facebook posts, and other social media that people publish to or share with the public can expose employers to backlash from the public and sour the relationship between the employer and employee. Even the cook at Burger King can cause outrage by posting a photo of himself standing on exposed lettuce that garners national attention and thus causing a major headache for the corporate. What might have been intended as just a prank, became a nightmare for the store and its employees, as the store’s location made national headlines likely deterring customers and costing the company potential dollars and jobs. Behavior like this cannot be tolerated, but are there any ethical limits for ethically minded businesses? Ethically conscious businesses want to allow employees to properly and cordially express themselves, but the employee’s right to self-expression does not surpass the business’s right to be free of employee’s reckless social media behavior that can irreparably damage the business, brand or bottom line.
Free speech is an important right, but speech in the age of social media can also cause irreparable, permanent harm when embarrassing photos, statuses and tweets circulate across the Internet. For this reason, employees are often told that, as an employee, they represent that employer at all times. Employees may be required to maintain a professional demeanor during and after business hours, as employers are increasingly monitoring their online activities. Technology research firm, Gartner found that the practice is quickly growing and that by 2015, more than 60 percent of employers will use social media to monitor employees. Several products are becoming available to employers for the monitoring of employees’ sites as well as public relations firms now offering such services.
With these new dangers, ethical businesses must ask themselves to what extent is it proper to discipline or even terminate an otherwise successful employee because of their social media behavior? Where does the line between business and none-of-your-business lie?
The ethical guidelines are being defined by employers and courts, as the popularity of social media continues to grow and cases of alleged employee misconduct become public.
Gene Morphis, CFO - Can’t hurt the bottom line and definitely cannot break the law
The impact of social media’s new power over businesses can strike the entry-level Walmart employee, as well as the CFO of any given company.
When Gene Morphis, the CFO of women's clothing and accessories mega-retailer Francesca’s was terminated from his position in May 2012, the Internet was abuzz with the first national news story of a C-level executive, a middle-aged man, being let go from a successful, publicity-traded company for misuse of social media.
As it turns out, Twitter usage isn’t just for teens and 20-somethings anymore.
Morphis, who had been with the company since October 2010, was terminated after he had "improperly communicated company information through social media," the company said.
While Morphis may be among the first in his unique position as a top-level professional to garner national attention for a social media related firing, the issue is becoming a growing problem for a number of employees and employers. Morphis’ case brought light to the fact that many companies in an effort to define and discipline such behaviors, are resorting to enacting social media policies that may be considered illegal—often unbeknownst to them,
What right do employers have to monitor their employees’ social media use? While free speech rights can be argued, the problem mostly comes when activity has potential to hurt the company’s bottom line.
In the case of Mr. Morphis, his commenting on company financial meetings made his employer vulnerable to prosecution under insider trading laws. Less than 140 words, sent out to some-400 followers, put the large-scale business at major risk.
Lindsay Stone - Some things violate the unspoken rule #1: do not bring shame to the employer
Clearly, when a CFO breaks the law and exposes the employer to criminal and civil liability, an employer has no ethical obligation protecting their right to expression. But there are other examples of ill-advised social media activity that, although legal, hurt the employer’s financial bottom line as a result of public outrage.
In November 2012, Lindsay Stone was released from her position at a non-profit organization after Facebook photos of her disrespecting the Tomb of the Unknown Solider became national news.
In the photos Stone is seen posing next to an official Arlington National Cemetery “Silence and Respect” sign, displaying her middle finger and pretending to shout. The incident had no relationship to her employer until outraged viewers researched her place of employment and rallied thousands to lead an Internet rally for her to be fired. Within days, the company succumbed to the pressure and announced the termination of Stone, as well as her accomplice who took the photo.
As distasteful as the act may be, posting the photos was well within her First Amendment rights and had no direct relation to the employment responsibilities of the woman. The incident raises an important question: Is taking such action against an employee, when the act doesn’t directly affect the business, ethical? The short answer appears to be that in this particular instance, it was ethical, since Lindsay Stone took the chance that there could be public outrage when she posed for the picture and posted it, or allowed herself to be tagged in it, and that there could be sufficient public outrage to cause her termination. Businesses cannot be held responsible for an employee that commits an act that causes reasonable and foreseeable public outrage and harm to the business, should the public become aware of it. Had Stone’s act been defensible, reasonable or wise, her employer would have had a much tougher decision to make after balancing her right to self-expression versus the public backlash and potential for damage. But that’s just the thing, if Stone’s act had been defensible, reasonable or wise, we wouldn’t be talking about her because no one would have been outraged.
Grayer Areas for Employers
Some areas of this issue are not gray and clearly require terminating the employee. When an employee crosses an ethical line and commits an outrageous act and publishes it on Twitter to the detriment of the employer, an employer does not owe any ethical duty to their employee aside from the bare minimum afforded by law, such as a final paycheck. An employee that viciously bites the employer’s feeding hand cannot complain that they were owed the right to free speech.
However, some cases are closer and fall into a grayer area, such as provisions of Costco’s employee handbook and the “Like” button that a deputy sheriff allegedly clicked.
In September, the National Labor Relations Board (NLRB) issued its first decision regarding employer policies on social media. In that decision, the Board found that mega-discount retailer, Costco Corp., enforced a social media policy that was in violation of the National Labor Relations Act (NLRA). The board found that a policy within Costco’s employee handbook said that any statement an employee shared electronically, in a message board or discussion group that was found to "damage the Company, defame any individual or damage any person's reputation" was susceptible to discipline, possibly including termination, and this was a violation of the employees’ rights.” While previous judgments by the board upheld Costco’s policy and others like it, the Sept. 7 decision found that the policy could potentially lead employees to determine that it "would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents)."
Costco has since been required to modify the policy, but what ethical principles should guide them? Free speech is fundamental to our society, but so are businesses that are free from damage to the brand from within; “don’t bite the hand that feeds you” is an adage that reflects an ethic of respect for the entity that provides your paycheck.
When the employer is a public official and doesn’t have a motive to make a profit, we can examine even more clearly the dimensions of this ethic. In 2009, Virginia sheriff's deputy Daniel Ray Carter Jr. was terminated from his position after it was discovered that he used the “like” function on the Facebook page of the direct political opponent of his supervisor. His employer, the sheriff, may not have a direct profit line to tend to, but he does have the right to expect not to be undermined by his own staff during an election. Carter has the right to voice his opinion in other ways that will always be protected, like voting and donating money, but whether or not expressing views against his employer through social media, has since become a legal contest that has courted the involvement of the American Civil Liberties Union (ACLU).
Carter contested the case in court, arguing that the termination violated his rights under the First Amendment, an opinion that many employees believe protect them. But in 2012, the judge struck the claim down. "Liking a Facebook page is insufficient speech to merit constitutional protection," Judge Raymond A. Jackson curiously reasoned in his May ruling, because it doesn't "involve actual statements."
The ACLU filed an appeal in August 2012 . "The judge is wrong in the sense that the Facebook button actually says the word 'like,' so there are actually words being used," said Aden Fine, a senior staff attorney with the ACLU told CNN. "And there's a thumbs-up symbol, which most people understand means they, literally, like something."
Whatever the law may say, something does not feel ethically right about requiring a boss to employ a person that is trying to get that same boss terminated. However, the guiding principle for the employer should not have anything to do with their difference of opinion, rather, the betrayal and insubordination committed by the sheriff’s deputy. The sheriff’s deputy is biting the hand that feeds him, so to speak, and in a tightly regulated and militaristic workplace like a police department, such an act of open defiance may be tantamount to insubordination in some instances.
However, we must be careful to allow that same deputy to report misconduct and speak the truth without fear of retribution. Carter’s case illustrates the gray area that is increasingly troubling many employers and employees, and has even caught the attention of some lawmakers.
Recently an increasing number of employers and colleges began requiring candidates to supply their social media passwords as a part of the interview process began making national headlines, raising the question of where the appropriate line is between necessary disclosure and invasion of privacy. The issue gained enough legislative momentum that in 2012, a new law was signed in California and New Jersey banning employers from requesting social media passwords from employees or potential hires.
In March 2010, two U.S. senators, New York Senator Charles Schumer and Connecticut Senator Richard Blumenthal, asked the Department of Justice to review whether the growing practice violated any federal law and announced plans to draft legislation that would fill any gaps in the law. In Maryland, where some high school athletes were required to watch as administrations log into their personal Facebook pages and review their activities, have already enacted such legislation.
"It's an invasion of privacy for private employers to insist on looking at people's private Facebook pages as a condition of employment or consideration in an application process," writes Catherine Crump, an ACLU attorney. "People are entitled to their private lives."
In October, the ACLU came one step closer to forcing the issue by further defining their guidelines stating that, “overly broad” policies, such as those of Costco Corp., are unlawful. However, until any such federal legislation is passed, just how much privacy employees are entitled to remains largely undefined.
Drawing the line
Although social media exposes each company with any number of employees to the potential for public scorn as a result of an employee’s off-duty conduct, the Society for Human Resource Management surveyed 470 businesses in 2012 and found that only about 40 percent of them had any sort of formal social media policy in place. Additionally, of the companies that reported having a policy in place, about one-third reported having taken a disciplinary action against an employee. Not only must businesses include clear guidelines regarding off-duty conduct as it relates to the ubiquitous and immortal nature of the Internet, they should also consider each case individually and with an eye towards the needs of the business versus the needs of the employees to express themselves. In the end, the financial bottom line is the entire purpose of business. Employees should consider whether or not their actions present a risk of damage to the earning potential of their employer.
As for Mr. Morphis, he may not be employed by Francesca’s. But he doesn’t appear to be down on social media. While he has never publicly addressed his firing, he has remained active on Facebook as well as Twitter, where he holds the kitschy handle: @theoldcfo. Additionally, he has maintained a presence as an occasional blogger and e-book author. In July 2012, two months after his termination, he wrote on his personal blog “I’m a Kindle author (albeit barely, my book ‘Jobs Over Fifty, the Guide to New Employment for the Experienced Worker,’ has yet to hit the best sellers list. But there is still hope).”
In an age where news and gossip can spread like wildfire, the effects of social media on employer law and employee expectations remain to be seen. While free speech advocates maintain the monitoring of social media activity is a violation of First Amendment rights, employers contend that the growing use of electronic communications leave trade secrets and company reputations more vulnerable than ever. When an employee publishes something on social media that either hurts the employer’s business or undermines that employer’s authority, the employee has done harm to the person or people writing the paycheck. The employer’s decision to terminate an embarrassing employee should not stem from a difference of opinions, because opinions are what make a democracy. The decision should stem from the ethical principle of doing no harm to your own business or purpose, not to mention the livelihoods the other employees.
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