by Chelsey Lucas

LAST MONTH, Republican Party staffer Elizabeth Lauten resigned after posting a snarky Facebook comment about Sasha and Malia Obama. But how should employers handle this issue when one of their own employees is griping or gossiping? It’s complicated, says Kimberly Page Walker, a labor and employment attorney with Williams Parker.

“There’s a difference between personal venting and protected speech,” Walker says, and it’s important to determine what type of speech it is before taking disciplinary action. Various laws protect an employee’s conduct outside of work, including private and public whistleblower laws, the National Labor Relations Act (NLRA) and the constitutional freedom of speech.

If the employee is sharing confidential information like trade secrets or client information, or is engaging in the violation of the rights of others, it’s likely that disciplinary action will be advised.

But employers should think twice about consulting social media profiles in the hiring process or during an employee’s tenure in case they learn about “protected characteristics or conduct,” such as a mental illness or having formerly filed for bankruptcy. Down the road, the employee could accuse the employer of discrimination if the employee is terminated or passed on for a promotion. “Employers like to not be aware of those things so there’s no accusation,” Walker says.

Employers can establish social media policies in the employee handbook, so long as those do not trump employee rights as established by the NLRA. Walker also suggests limiting social media access at work.

“Employers should review social media policies to ensure that they are narrowly tailored to keep up with developing case law in the area,” Walker says. ■