Social Responsibility of Media: Realization Rights for Social Media Posts

Should everyone be “Mirandized” before posting on social media? The Miranda Rights, intended to ensure suspects understand their rights when arrested, may be useful to anyone using social media. The Miranda Rights state that whatever you say can and will be used against you, and that has been proven many times when it comes to posts on social media as there are many examples of employee terminations due to inappropriate social media posts; however, you also have the right to remain silent to prevent unwanted repercussions.

Statistics show that 77% of the U.S. population has a social media profile, and it is expected to grow to 2.95 billion people globally by 2020 (Statista, 2018). Social media is everywhere with Facebook, Twitter, Instagram, LinkedIn, YouTube, Pinterest, Tumblr, Google+, Snapchat, Periscope, and Viber to name a few and these platforms can both help and hinder the workplace environment. Social media is an all-encompassing term that refers to media that is shared, whether a video, a text, a blog, a photo, a podcast, or other electronic content. Your posts, regardless of when written, can be used as the basis for termination from your employment, depending on the content and how it is interpreted.

When considering posting thoughts, opinions, photos, and other forms of internet-based content, one might also consider another phrase used in Miranda Rights, “You have the right to remain silent” (Miranda Rights Organization, 2018). Using social media carries a social responsibility, so always think before you post and consider if what you are about to post could be shared with your family, friends, enemies, employer, and anyone else without any repercussions. If not, then you might want to remain silent. As we delve into Social Media and the workplace, we find a sea of legal and privacy issues as well as ethical concerns regarding the use of social media by employees as well as with employers monitoring and screening current and potential employees’ social media.

The Miranda Rights of Social Media: You Have the Right to Remain Silent

The Case of Fernando Bryant

Let us start with the case of Fernando Bryant, who was fired from his job at a Christian school because a photo found on social media showed him holding a bottle of alcohol, which did not reflect the Christian values of his employer. Fernando Bryant, an N.F.L. Draft who played for the Detroit Lions, New England Patriots, and Pittsburgh Steelers, took a job with Strong Rock Christian as Head Coach of the football team and was terminated three weeks later based on a social media post-Bryant said he was posted three years prior to his hiring (Aubrey, Kish, & McQuade, 2017).

Bryant indicated the photo was for a promotion, the actual bottle was closed, and the photo did not show him or his wife partaking in any alcohol. The school’s application that Bryant signed included the statement, “I will refrain from the use of alcoholic beverages and tobacco in public,” which the school used as the basis for the termination. Personally, I do not believe this termination was justified because Bryant’s application’s expectation stated he would refrain, not he has and will refrain. The expectation did not include past behavior. Also, he wasn’t actually using the alcohol, only holding a bottle. If the school felt this incident didn’t appropriately reflect the Christian beliefs of the school, then wouldn’t they also have to fire everyone they employed who ever told a lie, committed adultery, took the Lord’s name in vain, dishonored their Mother or Father, stole a pen or pencil or coveted a neighbor’s spouse or belongings?

Wouldn’t all of those be grounds for terminating employees for not demonstrating the Christian values of the school? The First Amendment protects us from the government telling us what we can and cannot say, but it doesn’t protect us from private employers telling us what we can and cannot say. The National Labor Relations Board protects the rights of employees if they are acting together to address issues at work or conditions, and that includes acting together on social media (National Labor Relations Board). “Common Law rights to privacy consist of four categories: (1) intrusion upon seclusion; (2) public disclosure of embarrassing private facts; (3) publicity which places a person in a false light in the public eye; and (4) commercial appropriation of a person’s name or likeness” (Determann & Sprague, 2011).

While intrusion upon seclusion would likely be a common tort used, a highly offensive or invasive intrusion would also be mandatory, but none of these apply specifically to Bryant’s situation. There are scenarios that allow employers to terminate employees if the employee is using lude, drunken, or other inappropriate photos or content (HG.org, 2018), but in this particular case, Bryant was terminated based on what his employer deemed inappropriate. Interestingly, parents planned a stand-in to protest the firing but called it off when administrators finally agreed to meet with them to discuss the firing, as many of the parents were embarrassed by the behavior of the school and were prepared to remove their children from the school (WXIA Staff, 2017). Additional events included Bryant filing a discrimination claim against the school with the EEOC (Habersham, 2017) and the C.E.O. and Athletic Director resigning from the school (McQuade, 2017). The irony lies in the fact that the school received much more negative publicity for firing Bryant than it probably would have for keeping him and potentially disciplining him on after-work behaviors shown on social media that could negatively reflect on the school.

What would an HR Director do?

As an HR Director of the Strong Rock Christian School, I would first gather the facts. What is our social media policy? What was the context of the post? Is the post in violation of any school policy or federal or state law? Did Bryant have an employment contract? I would need to reflect and weigh the potential damage to the reputation of the school while also ensuring fairness to the employee. Am I prejudiced? Is any unconscious bias guiding my decision-making? In today’s environment, it is a case-by-case decision as so many different variables are considered. There is no statute of limitations for social media posts, so the fact that Bryant’s post was prior to his employment has no bearing (Bell, 2018).

To better prepare the school and its current and future employees, I would ensure the following existed: Core school values, a Social Media policy, Social Media training, and a hiring contract that clearly stated all expected behaviors, previous and current, to demonstrate both the school’s values and advocacy for the school. I would also ensure the Social Media guideline supported the mission and strategy of the school. In addition, I would ensure a consistent recruiting/hiring process that clearly advised applicants, prior to applying, that social media would be reviewed. The State of South Carolina is an At-Will Employment state which means that an employee can terminate the working relationship at any time as can the employer; however, if there is an employment contract signed or even a signed acknowledgment of a Code of Conduct, it could allow exceptions to the At-Will state and provide better grounds for a satisfactory resolution.

I would also determine if there were laws in my state that prohibited terminating employees based on social media content. I would ensure that the policy written expressly stated the use of social media while working and the use of social media during after-hours. Since much of what I have read on this subject includes the verbiage “reasonable expectations,” I would try to clearly define where the line is that, if crossed, would result in termination. Lastly, I would link the social media policy to the code of conduct, ethics policy, and anti-harassment guideline to outline that all of those guidelines/policies are still in effect and must be adhered to, whether the behavior is demonstrated virtually or physically. Some positives of monitoring social media would include use in Recruiting, advocating for the employer brand, engaging employees, networking, knowledge-sharing, and communicating. Some negatives would include security (or lack thereof), harassment, legal violations, loss of productivity, and lack of personal interactions. See the Appendix at the end of the paper for an example of what a Social Media Guideline might be for Strong Rock Christian School (Strong Rock Christian School, 2018).

Using Social Media to Hire and Fire

Using social media to hire and fire has resulted in legal actions in many cases, and as such, both federal and state laws exist in regard to employment-related cases. Some of the legal issues include “the discoverability and evidentiary admissibility of social media postings; claims brought under federal and state discrimination laws; violations of the federal labor laws; federal statutory and constitutional claims as diverse as the Stored Communication Act, the Health Insurance Portability and Accountability Act, the Fair Credit Reporting Act, the First Amendment; and intellectual property issues” (Hidy & McDonald, 2013).

Courts now consider posting on social media as evidence in both civil and criminal cases. The National Labor Relations Board, a federal agency, also protects employees who use social media to share information, both positive and negative, regarding working conditions or their employer under Section 7 of the National Labor Relations Act (29 U.S.C. §§ 151-169 (2006) (Ella, 2016). They protect both unioned and non-unioned employees with the right to engage in “concerted activity” or the right to discuss terms and conditions of their employment and to even criticize their employer as long as the discussion is with co-workers or outsiders and not as single comments. By the same token, some states, including South Carolina, have mandatory reporting statutes that require employers to report child pornography found on any computer (Ella, 2016, p. 3).

Monitoring of employees is necessary to measure productivity and interrupt non-work related activity, protect trade secrets and other confidential company data, and detect sexual harassment, fraud, theft, bullying, and any other improper behavior that would be in conflict with work contracts, codes of conduct, ethics or other company policies or guidelines. However, the monitoring should be limited to any keystroke on a company-owned electronic device, and employees should be made aware of said monitoring. Any other monitoring should be general and would monitor any and all outside activities where the company name or other keywords popped up. In other words, if something is made known to the organization, it will be investigated. However, the organization would not specifically review a current employee’s social media posts without reason.

It is in the company’s best interest to mitigate risks associated with communications that could put the company at risk or make it liable. It is also necessary to inform employees they are being monitored. As far as monitoring the social media of applicants, it can be a very slippery slope. Today, laws prevent an employer from asking if you are married, pregnant, plan to be pregnant, have a disability, how old you are, your religious affiliation, your sexual orientation, or your race; however, perusing an applicant’s social media could quickly answer any or even all of the questions. If that is the case, how would you, as an employer, defend an accusation of discrimination if an applicant filed a charge? It would be imperative that no hiring decision be made on any data gleaned from social media involving protected classes and limited to data that would deem the applicant unsafe to work in the organization or a potential threat to the company or its current employees. If screening applicants’ social media, it would be more forthcoming as well as indicate the transparency of the company if the application process clearly stated that social media screenings would take place for all, not some, applicants (Bentley, 2013).

In this way, it would provide an opportunity for any applicant to scrub their social media, prior to applying for the job, for any content a potential employer might deem inappropriate. Just like the Miranda Rights, anything you say (or post on social media) can and will be used against you, but the best guideline is to simply refrain from posting any thought, view, opinion, or other content that could potentially be used against you or prevent you from an offer of employment. You have the right to remain silent.

References

1. Aubrey, F., Kish, P., & McQuade, A. (2017, Feb 23). ‘Blindsided’: Ex-NFL player, wife shocked at high school firing over social media post. Retrieved from 11Alive.com: https://www.11alive.com/article/sports/high-school/blindsided-ex-nfl-player-wife-shocked-at-high-school-firing-over-social-media-post/412855302
2. Bell, J. D. (2018, Aug 24). Firing for Online Behavior. Retrieved from Society for Human Resource Management: https://www.shrm.org/hr-today/news/hr-magazine/0918/pages/firing-for-online-behavior-.aspx
3. Bentley, E. (2013). The Pitfalls of Using Social Media Screening for Job Applicants. A.B.A. Journal of Labor & Employment Law, 29(1), 1-13. Retrieved from https://www.jstor.org/stable/43489421
4. Determann, L., & Sprague, R. (2011). Intrusive Monitoring: Employee Privacy Expectations Are Reasonable in Europe, Destroyed in the United States. Berkeley Technology Law Journal, 26(2), 979-1036. Retrieved from http://library.limestone.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&AuthType=url,ip,cookie,uid&db=aph&AN=69911755&scope=site
5. Ella, V. J. (2016, Apr 8). American Bar Association Section of Labor and Employment Law National Symposium on Technology in Labor & Employment Law. Retrieved from American Bar Association: ttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwiIyerz973eAhUuWN8KHXEoACwQFjAAegQICxAC&url=https%3A%2F%2Fwww.americanbar.org%2Fcontent%2Fdam%2Faba%2Fevents%2Flabor_law%2F2016%2F04%2Ftech%2Fpapers%2Fmonitoring_ella.authcheckdam.pd
6. Habersham, R. (2017, May 11). Fired coach files discrimination claim against Christian school. Retrieved from The Atlanta Journal-Constitution: https://www.ajc.com/news/crime--law/fired-coach-files-discrimination-claim-against-christian-school/eWCZiESIvLgzXy3GCNuoGP/
7. HG.org. (2018). Can you get fired for what you post on social media? Retrieved from HG.org: https://www.hg.org/legal-articles/can-you-get-fired-for-what-you-post-on-social-media-37948
8. Hidy, K. M., & McDonald, M. S. (2013). Risky Business: The Legal Implications of Social Media’s Increasing Role in Employment Decisions. Journal of Legal Studies in Business, 18, 69-88.
9. Miranda Rights Organization. (2018). Miranda Rights. Retrieved from MirandaRights.org: http://www.mirandarights.org/index.html
10. National Labor Relations Board. (n.d.). The NLRB and Social Media. Retrieved from National Labor Relations Board: https://www.nlrb.gov/rights-we-protect/rights/nlrb-and-social-media
11. Statista. (2018, Mar). Percentage of U.S. Population with a Social Media Profile from 2008 - 2018. Retrieved from Statista The Statistics Portal: https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/
12. Strong Rock Christian School. (2018). About, Leadership, Support. Retrieved from Strong Rock Christian School: http://www.strongrockchristianschool.com/
13. WXIA Staff. (2017, Feb 27). Organizers call off stand-in over coach’s firing; school administration to speak. Retrieved from 11 Alive: https://www.11alive.com/article/sports/organizers-call-off-stand-in-over-coachs-firing-school-adminstration-to-speak/85-414800038

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