/>iIt only takes one tweet, one Facebook post or even just an overheard conversation shared without your knowledge to go viral and your job is in jeopardy. Something that was once overlooked by HR departments because they occurred outside of the office can no longer be ignored. Companies are having to rethink their approach to employee relations and perhaps how they can protect themselves from legal recourse. Callis Family Professor of Law Matt Bodie explores the legal implications of social media and the workplace.
CORIE: Welcome to SLU LAW Summations. I’m Corie Dugas. Today we’re talking to Callis Family Professor of Law Matt Bodie. Professor Bodie is also the director of the Masters of Science and Human Resources program here at SLU LAW. He recently wrote a piece on the flurry of social media firestorms and how they often end with someone losing their job. Matt, welcome!
MATT: Thank you very much. I’m happy to be here.
CORIE: We’re glad to have you. So I’m going to jump right in and I just want to ask you about some of the cases of social media – things that have led to firings – that have caught your attention lately.
MATT: One person who has been in the news recently is Anjali Ramkissoon. She is a medical resident in Miami and she was captured on video basically assaulting an Uber Driver. She was intoxicated. She wanted to get home and she thought the Uber driver should take her home, but it turned out the Uber driver had been called for someone else and he had insisted on taking that other passenger. And she starting hitting him and got into his car and threw out all his personal effects, including paper and other items onto the roadway. She made a real mess. Anyway, this was all captured on video and it was posted online and it got millions of hits overtime. And when this came to light, she was identified and her employer ended up putting her on leave because of this embarrassing video.
CORIE: If I remember this case correctly, she was not actually arrested was she Matt?
MATT: She was not arrested and the driver did not press charges. Probably nothing would have happened, except it was captured on video and then posted to YouTube.
CORIE: So if it hadn’t been posted to a social media site like YouTube, do you think that she would have been placed on this administrative leave?
MATT: Well it just depends, if the driver had pressed charges or if one of her friend–or probably more likely a colleague–had seen it and said, “Boy, we better talk to her about this the next day she comes into work.” Then, something might have happened. But the likelihood is that this would have been a personal event, it would have been embarrassing, it might have maybe changed the way she thought personally about drinking perhaps. You know, rain it in the next time a little bit. But otherwise, it probably would not have had the dramatic effect on her personal life and her professional life that it seems to have had.
CORIE: So this is a great example of the fact that personal behavior has recently really become a firable offense. I know that you’ve seen that a lot and what you’re doing with this research, why has the law moved in that direction?
MATT: Well I think it’s because this has a tangible effect on employee reputation. Now interestingly enough, once this situation came to life with Dr. Ramkissoon, the University of Miami tweeted out, “She’s not a student of ours anymore.”
CORIE: Very Quickly.
MATT: Yeah very quickly and they referred to her current place of employment, which then tweeted out or released basically a press release saying, “She is under investigation. She has been relieved of all duties temporarily and we’re gonna let that process go forward.” And that sort of backlash, right? I guess the idea is people were really offended by her behavior and the instinct when you see the video – at least amongst a lot of people – was this person should be punished in some way. There should be some sort of ramifications for this behavior.
CORIE: So do you think that’s what leads to companies firing or suspending people so quickly is that public backlash?
MATT: I do, definitely. They want to get out ahead of it and they want to make clear the employee may have done this, but that shouldn’t reflect on us.
CORIE: So are the companies always right in reacting so quickly?
MATT: Well, that’s a difficult question. This particular case is on the backburners being investigated. And I think that’s more appropriate because there is going to be some situations that will blow over rather quickly and that may be embarrassing, but that might not reflect on the person’s professional life or professional work. And in those cases, I think it’s better to let the storm pass, but particularly if it’s an employee that has shown him or herself to be valuable in other ways. You don’t want to punish person for something that other people may do, but if it’s not captured on video, you know. So if this hadn’t been captured on video nothing would have happened here. If, of course, she has a drinking problem and that is reflected in her work behavior, then it’s a different story. But right now, it is reflecting on her reputation. In fact, there is a website that someone has put up basically, and have indicated that they are going to keep it up forever, because they want everyone to know forever about her behavior. And they took a lot of photographs from other personal media sites that she kept up –other social media sites. And so this person– I don’t know who it is, I don’t know what their agenda is– but they seem intent on kind of keeping this reputational effect on her for the rest of her life.
CORIE: I’ll admit I did a quick Google search on her name before we came in here and that was one of the top sites that came up. And it looks very credible when you first look at it in the search engine. So to go in there and see that, it does prove that this can kind of continue and move forward past these small incidences. So in situations where companies do fire an employee or they do suspend an employee, how can human resources professionals protect these companies from legal recourse?
MATT: Right. Well, if the person is being singled out for a prohibited reason, right? So if there is some sort of racial or sexual or disability or religious discrimination or sexual orientation in some jurisdictions, if there is some sort of way in which this person has been somehow singled out other than the embarrassing behavior. So for example, if someone were the member of a religion that had a strange ritual and that was captured on videotape. And this ritual was broadcast and became a viral sensation, and the employer wanted to fire the person because of that ritual, they would have protection against religious discrimination. I think it would be more challenging to say, “Well this person is embarrassing, we have to get rid of them.” You would have to basically acknowledge that they’re protected in their religious exercise, particularly off the job, and you might not be able to fire that person legally if you’re doing it for religious reasons. But otherwise, most employees are at will, meaning that they can leave the job at any time they want and they can be fired at any time. And for those employees there really isn’t any kind of protection so HR, they have best practices that they should follow, but they don’t have a lot of legal obligations other than not fire people for those specific protected characteristics.
CORIE: So you mentioned at will employees. So there is a distinct difference between what you can do from a human resources perspective with at-will employees versus union employees? Correct? Can you explain a little bit of what that would mean in a situation like that?
MATT: Well, most union contracts require just cause for termination and there are also a lot of high level executives that have the same thing. And the idea here is that there needs to be a good reason to fire the person. And that’s what Dr. Ramkissoon is going through. She is being, basically, going through a grievance process. That’s what most unions have. They have a system where if the employee is fired, then the union can file a grievance on their behalf and it usually goes before an arbitrator or a set of arbitrators and they look to see whether there was good cause or if any disciplinary actions have been taken against the person.
CORIE: So Matt, what can companies do to prevent these sort of incidences from happening with their employees?
MATT: Well I think that they have to be clear about their expectations. And they have to remind their employees that the employees may not think that they are representatives of the company all the time, but if they do something embarrassing, particularly if its related to something that the company does and reflects poorly on the services or the products that the company provides, that’s going to have an effect on the company’s reputation. Therefore, the employer might say I don’t really care what you do off the job, we’re not interested in that, but we do care if the rest of the world knows about it and that reflects poorly on us.
CORIE: So we spent a lot of time talking here about it from the employers perspective and what they can do to protect themselves, but as employees and social media users, what would you advise that folks like that do to sort of prevent themselves from finding themselves in a situation like this?
MATT: Well the easy and kind of flip answer would be don’t be a jerk. Right? But at the same time, we all can be jerks and it might just be a question of whether we’re in the wrong place in the wrong time with regard to someone recording that. If we put it up on social media, maybe we didn’t really have the right angle and we were thinking about it in the wrong way and when we put it up we were angry or some sort of emotional. So, one thing you could advise folks to do is before they post something, particularly if its work related or it could reflect poorly on their employer, think about it and say is this something that I want to post at this particular moment. That’s kind of the rush of social media in some ways is posting in the moment. Getting other people to reflect or like your post or give you a comment like “way to go!” or “yeah, tell’em!” Particularly, people who live or work in a stressful environment, they might want to unwind or unburden themselves after work by saying what a jerk their boss is. Some social media sites like Facebook I think have more of an illusion of privacy and you might say something about your boss –that boss being a jerk–and expect that only your friends will know. It really is easy for those things to get out. And you just have to be really careful when you’re posting. And then in terms of personal behavior, you just have to be aware and it’s kind of a bummer. But, you just have to be aware that wherever you are. If there are video cameras or someone with a cellphone, that’s potentially something that could be put up on the internet. I think if you have a strong relationship with your employer, particularly with your supervisors that can help, because if people like you and understand you, they might be more sympathetic. Then just there’s –this seems a little far-fetched or at least something most employees couldn’t immediately access– but having a union there could protect folks by giving them a process to go through. A lot of what happens in these situations is the employee is fired almost immediately. You can’t really do that with the union. You have to have some sort of process and I think the process helps the employee because it allows things to cool down. It allows the employer to say, okay well let me see if it’s worth it to fire this person rather than waiting a little while and seeing if it blows over and getting that employee back to a position in which they can contribute.
CORIE: Absolutely. In the whole scheme of things, this is a really new issue that we’re facing. Do you think that the law has caught up with what is happening on social media?
MATT: Yes and no. I think the law has been pretty open to it and has really allowed it to flourish, but at the same time, I think we’re just kind of starting to see the limitations of what behavior, particularly employers can engage in. Employers have a lot of actual technical capabilities now of following you around with an RFID chip or watching everything that you look at on the internet, if you’re looking at it from a work computer. And it’s a lot of power that employers have. And because most folks are at-will again of course that’s a lot of actual contractual power. They can say we’re going to look at your internet use and if you don’t like it, you’re fired. We’re going to put a camera in your workspace and see what you’re doing and if you don’t like it, you’re fired. And we are going to require you to be an upstanding citizen and not say anything bad about us on Facebook, and if you don’t like it, you’re fired. So I think there may be a chance for the law to catch up a little bit and a project that I’ve worked on restatement of Employment law says that there should be kind of a implied term, even in an at-will agreement, that the employer won’t fire the employee for something that’s not work related, that happens off the job, and that doesn’t really reflect that poorly on the reputation of the company. Now in a situation like Dr. Ramkassun, you know that reflected poorly on the hospital. So that’s a difficult case. But on the other hand, if a supervisor doesn’t like that you’re a member of the Republican Party or doesn’t like your religion or doesn’t like the fact that you like a particular sports team, that shouldn’t really be grounds for firing someone. And that’s what this implied term acknowledges.
CORIE: So are there instances where you could be fired for something like being a member of the Republican Party, if you perhaps work for a democratic candidate? Would that be an instance where you’re posting those types of political beliefs on social media that it could be grounds for being fired?
MATT: Public employees–employees who work for the government–have protections under the first amendment. So they can’t be fired for being a particular party, unless the party is relevant to their particular post. So being Secretary of the Treasury or Secretary of Defense, those folks can be required to be in a particular party. But if you’re an average clerk or someone else in a lower level of government position, you can’t be fired for being in a particular party. Otherwise, though, it doesn’t have to be even relevant to the job. The problem today is that under the at-will agreement, political parties or having a particular extracurricular event that you like, those aren’t really protected characteristics. I think particularly when it comes to political parties there were some stories about companies urging their employees to vote a particular way in the presidential election and some sort of maybe menacing undertones about what would have happen if they didn’t. I think most folks think that that’s wrong. That shouldn’t happen. You shouldn’t leverage the power of employment to get people to vote a particular way. Obviously, if you’re the Democratic National Committee you want Democrats working for you, but other than that, if it’s not really relevant to the job. That’s what I think the restatement of implied term reflects is if it’s not relevant to the job, if it doesn’t affect the employers reputation then that really shouldn’t be grounds for termination.
CORIE: So you mentioned the case that had to do with the Miami doctor and the YouTube rant that was posted online, have there been any other situations recently that come to mind when you think of examples of folks getting fired or perhaps being put on leave, because of something that had happened on social media?
MATT: Well there was the case of the tweet from Justine Sacco. She got a lot of notoriety for that. She was a public relations representative who worked for IAC and she was travelling to Africa and she tweeted out, “Hope I don’t get AIDS, just kidding, I’m white.” She thought it was funny, I think. In fact, a lot of people took offense to that. They maybe didn’t see the irony or even if they did see the irony, they still thought it was offensive. And there’s a really interesting set of stories about her. Basically by the time she landed in Africa –South Africa, I think she was travelling to–she was fired. There are a lot of tweets and twitter kind of exploded around this. There were tweets saying, “Justine Sacco is fired and she doesn’t even realize it yet.” So that’s another example. Now again these are tough cases from a legal perspective and from my perspective because it does affect the reputation of the firm. And even though, she meant it as a joke, and you can probably chalk it up to like a harmless effort at kind of objectionable humor. On the other hand, the Twitter-verse went crazy, and people were really upset about it and really wanting some sort of tangible reaction from her employer.
CORIE: When I look at that particular situation I think that it’s a great example of someone thinking that someone is humorous or sarcasm being used in a way that it doesn’t display correctly with the written word. Do you know what the outcome of her case was? If it was determined that her firing was appropriate?
MATT: I don’t think she sued, from my understanding and I don’t think that she would have a lot of grounds for suing. She has bounced around, I think, between a couple different jobs. Bu this tweet follows her wherever she goes and I think that’s difficult. Again, it might just seem like one small toss away thing that you’re writing. She was probably jet lagged. I think she was transferring from one plane to another. It is interesting. There are pride people who write more offensive things every day that aren’t singled out in this way, but because of her privileged position, because it was particularly offensive to some people, and because she worked in public relations, I think all those things kind of centered on her and made her the target of this attack by Twitter. But again, a lot of people would say that it’s justifiable because she was being offensive.
CORIE: And this is again a great example of showing that sometimes you can do something on social media, on Twitter, on Facebook, that doesn’t hit and you don’t get any traction with it. But she just happened to shoot out this one tweet that put her job obviously in jeopardy.
MATT: Right. I think that it was picked up by one person who had a lot of Twitter followers, and if that happens then, boom.
CORIE: So these were great examples. Beware with what you are doing on social media, but it’s a really trendy topic and it’s something that everyone seems to be doing today. So I really just wanted to thank you so much, Matt, for joining us today. It’s been a pleasure to talk with you.
MATT: Oh, thank you very much, CORIE. I really enjoyed it.
