Ask the legal expert about ... employees' social media choices

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

One of our employees has public photos on Facebook where he's in drag, and a board member complained. How should we tackle employees doing potentially embarrassing things away from work, yet in a public way?

Have a consistently enforced social media policy that defines the improper usage of social media and the disciplinary measures that will be taken if the policy is violated.

Keep in mind the National Labor Relations Act says employees can be legally protected when they post on social media to complain about work conditions, their pay or their performance evaluations. These protections apply only when an employee is engaging other employees in group action or discussion and do not apply to individual gripes.

Employer policies that restrict employee rights under the NLRA have been found to be unlawful. Employers must also be aware of their state's labor laws, which may protect the o -duty lawful use of consumable products, such as tobacco and alcohol.

Additionally, Title VII of the Federal Civil Rights Act prohibits employers from discriminating in any employment decision on the basis of religion. This discrimination would include disciplining an employee for acts contrary to the employer's religious beliefs.

However, religious organizations get an exception to this. This allows religious senior care organizations to discipline employees based on religious grounds. But it is important to have a policy that is consistently enforced and formalizes what the organization's religious beliefs are.

Only the religious beliefs of the organization — not any specific board member — can be the basis for employee discipline.

Please send your legal questions to John Durso at ltcnews@mcknights.com.