Question:
One of my employees brought to my attention that another employee has some really hateful stuff on his personal social media. His profile also included the fact that he works in our restaurant. Can I ask him to remove it? And fire him if he refuses? Are there free speech issues? He’s a good employee, but I don’t want it to blow up or make other people uncomfortable (which it already has).
– Restaurant owner
Answer:
Social media policy is another area where restaurants are struggling to keep up with an increasingly challenging culture and regulatory environment. There have been numerous examples of employees doing stupid things on their personal social media outside of work—engaging with hate groups, complaining about guests or co-workers, sharing private or company information such as photos of celebrity guests, receipts and so on.
In general, in an at-will state, you can take action against an employee for things such as “posting racy photos on Facebook, or for engaging in any questionable social media activity … if your employer thinks it goes against the company's values or image.” But as usual, it’s not always that simple. The National Labor Relations Board recently ruled that employees who complain about their job “can't be fired if they're involved in what's called concerted activity, or joining with fellow staffers to improve working conditions.”
This complexity points to the need for restaurants to have strong social media policies regarding not only what an employee might post on a company account, but also how their personal lives may reflect on the company and brand. Your policy should specify, among other things, social media comportment at and outside of work, and that, while an employee has every right to express their opinions, they do not necessarily reflect the opinions of their employer. A template from the New Mexico Restaurant Association reads, in part, “Social networking through the use of Internet-based and other electronic social media tools is integrated into everyday life. We expect you to act responsibly, exercise good judgment and respect confidentiality when communicating information that identifies ‘Insert Company.’ We recognize that your participation in social media is a personal activity; however, as an employee, you are a representative of ‘Insert Company’ and you have a responsibility to protect the Company and its brands at all times.”
As always, talk with your attorney and restaurant association to craft a social media policy for your operation going forward and to make sure that solving this one employee problem does not invite larger ones.
More on restaurant social media policies here.