Dealing with Racist Content Posted by Employees on Social Media (i4cp login required)

What are companies doing about employees who post content on
social media that is inflammatory, derogatory, offensive, or racist?

This is a fraught question—one that comes up consistently in
conversations, chat threads, in emails, and even LinkedIn posts—many of us are
thinking about this and asking ourselves (and one another):

How should employers respond when
employees post aberrant content on their private social media accounts? What is
the best policy? What should be in the policy? What are the parameters? Who
decides what is inflammatory, derogatory, offensive, or racist? Where are the
lines? How do we know when those lines are crossed?

The issue of social media (a relatively new quandary) and
what employees do in their off time raises many complex questions for
employers, and there are obviously no easy answers.

This week’s pulse survey conducted
by the Institute for Corporate Production (i4cp) included a question that asked
107 business professionals about their organizations’ policies (if any) regarding
how racist comments or content posted by employees on personal social media
accounts are handled.

Not surprisingly, most (51%) said that their organizations
take an investigative approach—looking into the post(s) in question and making
decisions based on what they learn.

But what was a bit of a surprise was the number of
organizations that currently have no policy that addresses this at all

A few survey respondents noted in their comments that while
their organizations’ stated core values and guiding principles are clear and
reinforced to the workforce often, they aren’t sure what their organization’s
policy is on racist social media posts.

“We always say ‘we don’t tolerate intolerance,’ but specific
to social media postings etc.—it’s unclear,” one wrote.

“While we don’t have a policy that specifically addresses
personal social media, our practice is zero tolerance,” wrote another.

Not having a policy can result (worst case) in irrevocable
damage to an organization’s brand—i4cp’s
has shown that lower-performing organizations are more likely to
remain silent when it comes to taking a stand on political or social issues.
Not saying anything—which itself sends a message—can be as detrimental as
having employees posting terrible things on an account that mentions they work
for you.

And while a few of those surveyed (7%) indicated that their
organizations indeed have a social media policy that pertains to racist
comments or content, it is applied inconsistently—this is a problem too because
inconsistency can look like bias, lack of genuine commitment to anti-racism,
and even silent agreement.

Asked one participant: “Even if we [HR] don’t like some of
the content our employees post that’s brought our attention, isn’t firing
someone over it violating their First Amendment rights?”

The answer is no—at least not in the private sector.

According to a group of employment attorneys
who specialize in Diversity & Inclusion
, “The First Amendment
specifically prevents the federal government from interfering with
freedom of speech, but it doesn’t guarantee that right in private settings,
including private workplaces. So, a private-sector employee’s comments (whether
made in person or in writing on social media) are not protected from
consequences such as losing their job under the guise of freedom of speech.

But it all comes back to your organization’s culture, and
the setting of clear expectations of behavior.

If your organization has gotten started on creating a social
media policy, but plans to at some point, this is a conversation that should
include guidance from legal counsel.  


Media Posts During Turbulent Times: FAQs on Employee Rights and Employer

National Law Review: ‘You
are my Employer, not the Thought Police’ – Employee Online Activity in a Time
of Turmoil

National Law Review: Do
Not Cut and Paste – Why Your Company Needs Tailored Social Media Policies and