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Social media has blurred the lines between the personal and professional lives of employees.
For some, this has brought much-needed job flexibility and career development benefits. But for others, it has created confusion about whether inappropriate behavior outside of work should be punished inside the workplace.
Employee behavior outside of work is now more visible than ever before, whether it takes place specifically on social media, or is documented for others to see. By extension, this may also put the company at greater risk if the worker’s misbehavior is taken as a reflection of the company.
Yvonne Evans, former Director of Employee Relations and Talent Management at the American Pharmacists Association, argues the once clear boundaries between personal and professional lives have been blurred, particularly with the rise of platforms like Facebook and Glassdoor.
“Employees now have a public forum to express their grievances or share their work-related activities, often leading to situations where their behavior outside of work becomes a matter of concern for employers,” Evans explains.
So, what does that mean for whether employers can or should punish workers for behavior outside of work?
Should employees punish misbehavior outside of work?
While some cases, such as for unionized workers or senior execs, termination can only occur if there is ‘cause,’ i.e. the worker’s performance is poor or they have violated a specific company policy, the ‘at will’ arrangement in most US employment contracts means that the majority of US employees (counting you out of this one, Montana), can be fired without notice for any reason so long as it is not discriminatory.
This gives employers some freedom to intervene if they discover employee misbehavior that they deem has gone against the company’s code of conduct or put the company in a bad light.
However, employers should certainly refrain from screening employees online to determine whether their behavior is up to snuff.
Over half of US states have some type of ban on companies accessing social media profiles and some social media posts are protected: “You have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media,” the National Labor Relations Board explains, caveating that mere gripes are not protected – posts must have some relation to group action.
But what about those cases where misbehavior is reported to the employee? Well, if the employee has reportedly done something that disrespects the company’s values, or does something that is deemed by HR leaders as unethical, there’s no doubt the company should investigate the incident.
A Texas elementary school teacher, for example, was fired last year after her employer investigated complaints that she had posted racist statements on social media. The school deemed the posts did not reflect the values and standards.
“It’s important for organizations to take a strong stance against what is and what is not tolerated within a workplace or from team members, such as behaviors like harassment, discrimination, or violence, explains Jared Pope, a benefits and employment law specialist and Founder & CEO of Work Shield. “As always with these types of misconduct issues, incidents should be thoroughly investigated, preferably by a third party to remove any bias, and resolved based on the specific findings of that unique situation.”
The grey area of out-of-office behavior
Putting these extreme cases to one side, it’s worth considering instances where the lines are a little more blurry. Should an employer penalize an employee whose topless, body-positive photo shoot went viral because it doesn’t meet the company’s family-oriented values? Should a worker be fired if their employer sees screenshots of an aggressive message exchange with their child’s school?
These are grey areas and each company and individual may have their own perspective on whether the employee behavior outside of work was in keeping with the company’s values. However, whatever the perspective, employers must be sure there is a thorough process in place to investigate and resolve any behavior that purportedly violates a code of conduct.
“For less extreme cases, it’s still important to ensure proper processes are followed, open dialogue is conducted with both the employee involved and the rest of the team to prevent future incidents from occurring,” Pope explains. “By setting standards and continuously re-evaluating them, organizations can respond appropriately no matter the type of code of conduct violation.”
Try ‘simple conversations’ before resorting to penalization
However, even if employment is at will, employers should hesitate to jump the gun on penalization, and consider education, re-education, and communication before discipline. Employees may not be aware of how their behavior contravenes the company’s code of conduct, or how it is impacting their employer’s brand.
“The alternative to firing for infractions against company policy is to provide clarity and understanding of the organization's policies and procedures regarding how and where to address problems,” explains Evans.
This should begin on day one of an employee’s employment, but HR teams should consider that workers may need a reminder to understand their obligations to adhere to the policy.
“As an example, we had an employee scheduled to work a shift who called out sick. Later, there was a post of the employee at the beach on the same day”, Evans shares. “I spoke to the employee, and I asked first, "How was the beach?" Later, I informed him that if he wished the organization to be truthful and transparent, we would expect the same from him. It was a simple conversation.”
Setting a precedent that employees can be fired based on a loose interpretation of the company’s code of conduct or values could leave many workers, or prospective applicants, perceiving their employer as toxic and overstepping the boundary between worker and workplace.
“The organization should be proactive, communicative, and empathic with its workforce,” Evans advocates. “Once employees believe they are heard and seen by the organization, it will be a better place to work for everyone.”
