What employers can do about employees' social media posts

Hands typing on a laptop
Several states ban employers from firing or retaliating against employees for any off-duty lawful activity, including speech. Photo credit: BrianAJackson / iStock / Getty Images Plus

In times of crisis, people often turn to social media to express their displeasure. Unfortunately, some of these posts are inflammatory, derogatory, offensive or racist. Even though employees are generally posting on their personal social media pages and are often doing so outside of work time, coworkers are increasingly complaining about offensive comments employees are posting on various social media platforms. 

In response, hoteliers must balance a variety of legal requirements, employee and public relations concerns and their own company values. 

Can hotel management terminate an employee for their offensive social media posts?

The truth is, it depends. Some states prohibit employers from taking adverse employment actions against employees based on lawful off-duty conduct. Currently, California, Colorado, Louisiana, New York and North Dakota ban employers from firing or retaliating against employees for any off-duty lawful activity, including speech. Arguably, this could include conduct that their employers and coworkers may find offensive. 

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In the remaining states, the fact that an employee makes comments or posts on social media outside of work does not preclude an employer from acting against the employee based on that off-duty conduct.

Finally, the National Labor Relations Act and other similar state laws protect employees’ rights to communicate with one another about their employment. More specifically, employees have the right to engage in “protected activity” regarding their workplaces—sharing grievances and organizing online in protected activity. Under these laws, employees who are fired for posting online complaints about their wages, benefits, tip-sharing arrangements, management, hours or other work conditions could have a strong legal claim under the NLRA. 

What types of posts that would call for termination?

Posts that may warrant disciplinary action or termination include hate speech of any kind (regarding any protected classes); speech that is severe enough to constitute a hostile work environment (regarding any protected classes); threats to employee health and safety (including workplace violence); speech that damages the hotel’s guests, clients, or community at large; trade secrets; and confidential and proprietary company information.

What about a hotel employee’s right to free expression?

Employees often believe that their statements are protected free speech under the First Amendment. The First Amendment specifically prevents the federal government from interfering with freedom of speech, but it does not guarantee that right in private settings, including hotels. So, a hotel employee’s comments (whether made in person or in writing on social media) are not shielded from employment consequences under the guise of freedom of speech. The takeaway is that freedom of speech does not necessarily mean freedom from consequence.

How can hotel management determine whether discipline or termination is the right course of action?

It is important for hotel managers to recognize that there is no “one-size-fits-all” approach to what disciplinary action should be taken for offensive social media posts. Sometimes, the decision will be easy—employees should be immediately terminated for making racist online rants. Yet, there may be other times when a more balanced approach is warranted. In those cases, the hotel manager may need to impose discipline in a manner that is proportionate to the harm caused by the posting. 

Hotel managers may assess the impact of the employee’s conduct on the hotel’s employees and guests. Considerations include the context of the posts, whether coworkers will be forced to work with someone who has made offensive, racist, discriminatory or hateful comments about their immutable characteristics, like race, sex or sexual orientation.

Additionally, hotel managers may want to weigh the potential damage to a hotel’s culture and reputation from condoning the comments/conduct or, on the other hand, of condemning it. It is important that hoteliers are sensitive to how their guests would perceive this conduct and whether or not guests would feel welcome at the property if the hotel does not respond. 

What actions should hoteliers take with respect to their employees’ social media use?

Educate employees. Since many hotel employees operate under a misunderstood notion of “free speech,” it is important for managers to educate employees. Hotels can hold employees accountable for their social media conduct. However, as a fairness matter, employees need to be educated about their responsibilities and the consequences of their social media conduct and activities. Employees need to understand that problematic use of social media can include online conduct that may be associated with the hotel or that could potentially cause interpersonal problems in the workplace or guest complaints.

Constantly communicate and reiterate the hotel’s core values and policies. Employees need to understand the how their social media conduct reflects upon the hotel’s organizational principles and impacts the hotel’s brand. Hoteliers should ensure that employment policies, procedures and training reflect any corporate values of tolerance, diversity and inclusion, social justice and anti-discrimination/harassment/retaliation.

Adopt, review or revise social media use policies. Social media use policies should address inappropriate and offensive conduct and be disseminated to employees. Hoteliers can tell employees that their personal social media accounts, online networking accounts, blogs and other online communications may be reviewed and that any inappropriate or offensive content could subject them to discipline up to and including termination. They may want to explain in the policy what types of content could create problems, including harassing and bullying behavior or discriminatory or offensive language.

Conduct prompt investigations. Time is of the essence once social medial posts become viral. Once the hotel becomes aware of potentially problematic social media posts or other conduct it must take appropriate action. Delayed responses may exacerbate potentially volatile issues and cause guests to boycott properties or engage in mass cancellations.

Hotel managers can and should respond. From a legal standpoint, these issues remain on the forefront and continue to affect hospitality industry employers nationally and globally. Hotels can take proactive steps now to be prepared. In most cases, hotel managers can take actions against their employees’ racist off-duty conduct, and employers may need to do so to avoid legal liability and guest complaints. From a nonlegal standpoint, employers should respond when these issues arise. The manner and timing of the hotel’s response directly impacts employee morale, reflects upon the hotel’s commitments to maintain a culture of equity and inclusion, and affects both the hotel guests and hospitality industry’s perception of the hotel’s reputation and customer services responsibilities.

Katrina Grider is Of Counsel in the Houston office of Ogletree, Deakins, Nash, Smoak & Stewart. Christine Bestor Townsend is a shareholder in the Milwaukee and Chicago offices of Ogletree Deakins. 

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