In legal gray area, social media use may impact work life

November 29, 2017

A Virginia bicyclist’s chance encounter with a presidential motorcade late last month exemplifies the growing complications employers and employees face in the age of social media, local employment law professionals say.

President Donald Trump was leaving Trump National Golf Course in Sterling, Virginia, on Oct. 28 when the caravan encountered some unfriendly traffic.

“POTUS’s motorcade departed … at 3:12 pm, passing two pedestrians, one of whom gave a thumbs-down sign. Then it overtook a female cyclist, wearing a white top and cycling helmet, who responded by giving the middle finger,” read the White House pool report. “The motorcade had to slow and the cyclist caught up, still offering the finger, before turning off in a different direction. Motorcade is now gathering speed and heading for D.C.”

Photographer Brendan Smialowski captured an image of the bicyclist, and the resulting photograph quickly went viral on social media.

joseph pettygrove mug Pettygrove

“The woman’s name is Juli Briskman. Her employer, government contractor Akima LLC, wasn’t so happy about the photo. They fired her over it,” The Huffington Post reported Nov. 6. “Briskman, a 50-year-old mother of two, said she was stunned that someone had taken a picture of her giving Trump the middle finger. As the photo circulated online, Briskman decided to tell Akima’s HR department what was happening when she went to work on Monday. By Tuesday, her bosses called her into a meeting and said she had violated the company’s social media policy by using the photo as her profile picture on Twitter and Facebook.”

Joe Pettygrove, the newly appointed head of Kroger Gardis & Regas’ employment law practice in Indianapolis, said an ever-growing part of his job revolves around workplace investigations involving social media.

dawn lively mug Lively

“Increasingly, an employee posted this photo or said this on Facebook or YouTube or whatever else,” he said. “It either expressly references work, or this person could easily be tied back to work. It’s super embarrassing.”

Employers’ challenges

Dawn Lively — chief operating officer for Fullstack, a professional employer organization in Indianapolis — said Briskman’s firing shows the fine line employers must walk. She said once a manager learns something about an employee on social media, it’s impossible for them to simply ignore it.

“I think that’s a good, relevant example of the choices that some companies are making right now as far as choosing to not to continue employment with individuals,” she said. “I think that’s a decent example of the outlier on one of side of things vs. a lot of employers that are choosing to go the route of people shouldn’t be friends with their managers on Facebook. … It’s see-no-evil, hear-no-evil versus … ‘OK, well, that’s out there and we can’t ignore that and we’re going to have to let you go.’”

jodee curtis mug Curtis

JoDee Curtis founded Indianapolis-based human resources consulting firm Purple Ink in 2010. Prior to that, she spent 21 years in public accounting as a practicing CPA and as a director of human resources. Curtis said Briskman’s case reminded her of an instance she encountered over a decade ago. It was brought to her attention that one of the female employees had posted a picture of herself on social media pole dancing in a bar.

“(It was) not exactly good for our image,” she said. “I asked the employee to either take (down) the picture” or remove references to where she worked. “I didn’t feel like it was my legal right to tell her personally what to do, but I could ask her to take off where she worked. Ironically, of course, I was hoping she would take the picture down, but she actually took off where she works, and not the picture.”

Generational divide?

Pettygrove said he sees a generational divide between younger and older employees when it comes what’s deemed appropriate to broadcast to the world.

“It’s a new attitude. I don’t know if the basis of the law has changed that much,” he said. “It’s always been the case that off-duty conduct can get you in trouble at work. But, Gen-Xers, and, especially, millennials, they view their personal lives and their work lives all as kind of one, and they tend to think whatever they do on their own time is their own dang business, and it should have no ramifications at work whatsoever. … It’s resulted in a more permissive attitude from the younger generation of workers about what they broadcast to the world. Employers are confronting behavior that in generations past would never have been put out there.”

Lively said she has seen this in her own family.

“My mother doesn’t believe … if I’m out to dinner and having a glass of wine that I should post a picture of me with a glass of wine saying, ‘Unwinding after a long day,’ So, that’s even a very personal but true application of difference in generations. So, where do you draw that line?”

Curtis said with younger employees being more technically savvy, she has seen it work in exactly the opposite direction, as well.

“I think sometimes the younger generation, they’re better at social media,” she said. Older people sometimes are less aware of the consequences of what they post. “I think sometimes maybe older generations don’t get the impact of what could happen with it maybe as much.”

Proactive policy

Even with the rapidly changing technologies associated with social media, Curtis said she has encouraged employers to take practical steps to spell out their guidelines before an incident takes place.

“We recommend that our clients add a policy around that because (there are) many of them who maybe haven’t updated their manuals in a while (and) didn’t have that in there,” she said.

Lively said having clear expectations is only fair to the employer and employee.

“They need to be consistent about it,” she said. “Make sure that whatever policy they have is updated with the most current rulings and what has come down, because if you don’t do that, that’s when you end up getting yourself in quite a bit of hot water. … It behooves you to not only have a policy, but (to) make sure that it’s smartly written and that it’s reviewed by counsel.”•



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