Last month’s blog about the employer-employee Facebook saga scored one for employees, but the latest installment gives the edge to employers.  A recent case heard in a Georgia federal appeals court ruled that employees can be fired over their social-networking photos.

Tiffany Marshall, a Savannah probationary firefighter, lost her job over her Myspace photos.  These images featured Marshall and her coworkers in uniform, as well as several semi-clothed photos of Marshall, including one showing her bare backside.  An anonymous caller alerted Marshall’s supervisors to the photos.  Investigation found that Marshall had violated multiple Savannah Fire Department rules and regulations, particularly the section on displaying “unbecoming conduct” in her private life that discredited the department.  In response to the photos, the department gave Marshall a verbal reprimand and issued a general order reminding employees that department photos could not be used on personal websites without the fire chief’s express permission.

Marshall’s response to the reprimand led to her termination.  After she allegedly became defensive and combative, contending she’d been singled out as a female because male firefighters had not been disciplined for similar photos on their websites, she was fired for insubordination.  Marshall then sued for gender discrimination.  The court, which found no evidence of discrimination or violation of First Amendment free speech rights, dismissed her case.

What does this decision mean for employers?  A solid social media policy may be enforceable in court.  To be effective, the policy should clearly address work-related images and social postings, and disclose the employer’s right to review such media for compliance with employer regulations.  While drafting a policy, employers should remember that the National Labor Relations Act protects employees’ rights to discuss workplace activities.  Bottom line: employees’ social networking posts can’t be silenced, but can be guided by a carefully worded social media policy.

Our notoriously litigious society has made it a continuous challenge for employers to defend themselves from “sue-happy” employees. It has become far too easy for employees to sue their employers and as a result many employers are increasingly apprehensive about taking the necessary steps to address disciplinary actions.

HR managers are typically the “progressive discipline gurus” of a company, but let’s not overlook one major detail. Line managers need to be just as proficient in progressive discipline procedures since they are the key discipline agents. In essence, line managers should be viewed as an extension of HR management when dealing with disciplinary actions. There are a few fundamental elements of workplace due process that can improve the employer confidence in taking the appropriate disciplinary actions when needed.

First, in an appropriate, safe atmosphere the employee needs to be informed of what the problem is and what efforts can be taken to rectify the situation. Second, the employee needs to be given the opportunity to fix the problem within a reasonable time line. Lastly, the employee needs to be aware of the consequences if he or she does not show noticeable improvement. These disciplinary actions appear to be reasonable and logical, however, this is far easier said than done, which is why we have progressive discipline procedures.

The strategies of progressive discipline, shifts the sole responsibility for improvement away from the company and toward its employees (where it rightfully belongs). The way to do this is by meeting the employee half way to show equitable accountability for improvement.

How can employers meet employees half way? Well, for starters, there must be a progressive discipline policy in place that provides a clear systematic uniform approach to informing an employee of his or her unsatisfactory performance and/or conduct.

Progressive discipline counters the notion of at-will employment. The concept that employees may quit their jobs at anytime and employers may fire employees at anytime for any reason is a mere delusion of at-will employment even during the so-called “probationary” period. In my humble opinion, having a probationary period is a moot point since employers must still show cause for the termination if they are being sued during that time period.

Well-documented written warnings showing the employer’s intent of meeting the employee half way is the responsible way an employer can demonstrate their use of greater due process. Integrating a progressive discipline system will improve the confidence and skills of line managers to properly address situations that require disciplinary actions.

Ronnie Perez
HR Consultant
RPerez@ghrogroup.com

http://www.linkedin.com/in/ronnieperez