With the advent of social media, employees are no longer truly “off the clock.” This is highlighted by what recently occurred to Britt McHenry, a reporter for ESPN, who was suspended after she made some pretty awful comments to an employee who worked at a towing company.
McHenry left her car parked overnight at a restaurant even though a sign near the restaurant’s front door said, “Please don’t leave your car here overnight.” McHenry called the restaurant the next morning, but Advanced Towing had already towed her car.
When McHenry eventually went to pick up her car, she released an expletive riddled tirade towards one of the towing company’s employees. A video caught her comments, which went viral on the internet. While she apologized for what she said, ESPN suspended her for a week.
McHenry is not the first employee ESPN has suspended. Others include Bill Simmons for calling the NFL Commissioner “a liar” on his sports podcast, Tony Kornheiser for criticizing a co-worker’s wardrobe on his radio show, and Keith Olbermann for making insulting Twitter comments towards fans from Penn State University.
What is different about McHenry’s suspension is that it’s related to her non-work related comments, while she was “off the clock” and probably didn’t expect to be recorded on video.
Many employees are at-will, and can be terminated for almost any non-discriminatory reason. Employees do have a right a right to privacy, but social media changes the dynamics as the line blurs between what is private and what is public.
This begs the question: what conduct can an employer punish an employee for? What can an employee post on Facebook or tweet without fear of consequences from an employer?
- First Amendment. A common misconception is that the First Amendment protects all comments people make. As our blog previously discussed, the First Amendment prevents the government from limiting someone’s ability to speak. It does not apply to private entities.
- Industry. The answer to the question also depends on the industry. ESPN is a national brand that is concerned about its reputation and television ratings. When one of its employees makes disparaging statements, the ESPN brand as a whole can suffer. And for an ESPN personality, there might not be any “off the clock” time.
There are specific laws and issues employers and employees should review.
- Protected Classes. An employer cannot terminate an employee for being part of a protected class.
- Illinois Laws. Employees are protected under some privacy laws, including the Right to Privacy in the Workplace Act. For example, in Illinois, an employer cannot terminate an employee for the lawful use of products during non-work hours outside of the employment.
However, a court’s interpretation of this language is a little uncertain. For example, Colorado has a law similar to Illinois. According to a Colorado state appellate court, an employer was able to legally terminate an employee for testing positive to a marijuana test because even though marijuana use is legal in Colorado, it is still a violation of federal law. Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. App. 2013).
The Colorado Supreme Court has listened to the oral arguments in this case, but has yet to make a decision.
Illinois also has social media related protections. Specifically, an employer cannot request from an employee the employee’s passwords to any social media websites, unless those social media accounts are used for company business.
- The National Labor Relations Act (“NLRA”). The Act applies to the private sector and allows employees to take concerted activities to improve their wages, hours, benefits, or terms and conditions of their job.
Over the years, the National Labor Relations Board has provided guidance to explain what type of social media comments an employer can try to police, and what it can’t. A smart employer should review these guidelines to ensure its policies are compliant.
There are two big takeaways from the situation involving McHenry, and countless others suspended or terminated for their non-work conduct.
First, be careful. Even if what you are doing is legal, is that rant on Facebook or Twitter, or at a towing company, worth risking your job or reputation? While we all want some privacy, it’s much harder to get that privacy given the amount of technology at our fingertips.
And finally, if you are involved in a similar situation, you might want to consult with an experienced employment attorney. These issues are complex, and the interpretation of the law has yet to catch up with the changes in technology and social norms.