Employees Online Cross The Line! by Sheri McWhorter

Last month, Brixx Wood Fired Pizza made headlines after firing a 22-year old waitress for insulting a customer on her Facebook page, calling the couple “cheap” for leaving what she considered an inadequate tip. According to the Charlotte Observer, incensed by the perceived slight, the waitress posted "Thanks for eating at Brixx, you cheap piece of ---- camper."

A couple of days later, company officials called her in, showed her a copy of her Facebook comments, and told her she was being fired for violating the company’s social media policy, which prohibited employees from posting disparaging remarks about customers and/or casting the company in a bad light on an online social network.
The company’s social media policy, signed by the waitress when she was hired, also prohibited employees from giving the impression that they represent the company or posting anything negative about the company on their personal online social media. In an article posted on PizzaMarketplace.com, Brixx partner Jeff Van Dyke commented on the firing. “This server didn’t get as big a tip as she had hoped and she posted some very negative stuff on Facebook and on a discussion page, and somehow that was sent back to the store, and it was a clear violation. She was let go.”

The firing was first reported May 17, 2010 in the Charlotte Observer. Within days, the story was recirculated by the Associated Press and the Huffington Post, receiving thousands of comments and tweets – much negative. Apparently, the company’s decision to fire the waitress didn’t win the company many fans. In response, Brixx posted a statement about the incident on its official Facebook page. Within days, the page was swamped with negative feedback; some postings even called for a boycott.

Many of the negative comments cited the First Amendment, and decried the perceived trampling of the free speech rights of the waitress. To no avail, however, since although the First Amendment forbids government infringement on the free speech rights of its citizens, it does not prevent private employers from regulating or limiting the free speech rights of their employees.

Other comments focused on the company seeking to prohibit or limit otherwise legal off-duty conduct by its employees. Although prohibited in some states, there is no legal prohibition against Florida employers regulating the conduct of their employees outside the workplace.

The heated responses in the Brixx matter have drawn attention to existing social media policies, and captured the attention of companies who have not yet implemented them. As more people use social networking, more employees will inevitably cross boundaries their employers do not want crossed. Companies recognize their vulnerability and need for policies addressing employee use of social media. The struggle involves identifying and implementing measures to protect the reputation of the company in the world of social media, while minimizing the potential downside of negative fallout and backlash over restricting employees’ free speech and charges of overreaching.

Model social media policies abound, especially on the Internet. However, like any other human resources policy, employers must reject the “one size fits all” cookie cutter approach and, instead, tailor a social media policy to fit the unique needs of the company and its workplace culture.

An outright ban on employees’ use of social networking sites such as Facebook is not only impractical, it is likely unenforceable as well. Such a ban is also likely to have an extremely negative effect on employee morale, and may foster resentment, particularly if the company uses social networking. The better way is to take a proactive approach, structuring company policy in such a way as to encourage positive, yet prudent, employee use of social media.

Many companies require that employees, particularly management employees, create separate social media profiles for work and personal use. Companies may wish to consider offering a social media “lunch-n-learn” session for staff to help employees really understand how social media works and how its specific (and seemingly ever-changing) privacy settings can/should be used.

Social media policies should govern sites created by employees, as well as those sites upon which employees post or to which they contribute. Naturally, employer-created or sponsored sites will be more strictly regulated, yet should not be so restricted as to chill employee participation, which companies will wish to encourage instead.
Employees should understand that employers can and will monitor employee use of social media and social networking websites, even when employees are engaging in social networking or social media use away from the workplace.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A. With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area. For assistance, please call 866. 829.1883.