Social Media: Disciplining Employees for Online Activity

Pre-Discipline Review
Before disciplining or terminating an employee based on social-media activity, the city should conduct a prompt, impartial, and documented review. The following questions may assist Human Resources, department leadership, and legal counsel:

• Does the city have a written social-media, technology-use, confidentiality, harassment, ethics, outside-employment, leave, or conduct policy that applies to the alleged conduct?
• Is the policy lawful, clearly communicated, and consistently enforced?
• Is the online conduct connected to the employee’s job duties, the city’s operations, public safety, workplace relationships, confidentiality obligations, or public trust?
• Does the online activity involve speech or conduct protected by the First Amendment, USERRA, whistleblower law, a leave law, or another legal protection?
• What reliable evidence supports the alleged misconduct?
• Has the city preserved the available evidence, including the complete post, comments, images, account information, date and time displayed, URL or platform information, and relevant surrounding context?
• Has the city verified that the account belongs to the employee and that the content is authentic, complete, and accurately attributed?
• Has the employee been given a meaningful opportunity to respond to the allegation and explain the context?
• What city policy, job requirement, law, or legitimate operational interest was allegedly violated?
• How has the city handled comparable conduct by similarly situated employees?
• Is the proposed response proportionate to the verified conduct and consistent with past practice?
• Does the proposed action create an increased risk of discrimination, retaliation, constitutional, privacy, or public-records liability?

The city should consult Human Resources and legal counsel before taking adverse action based on social-media content, particularly when the activity occurred off duty or may involve protected speech, employee concerted activity, whistleblowing, political expression, leave, or an employment-related complaint.

Workers’ Compensation Issues
Social-media content may be relevant to a workers’ compensation claim or to an employee’s claimed work restrictions, but the city should not assume that a photograph, video, location tag, timestamp, or isolated post disproves an injury or establishes misconduct.

Before using social-media information in connection with a workers’ compensation matter, the city should ask:

• Was the information obtained lawfully, ethically, and consistent with the city’s social-media policy and the platform’s terms of use?
• Is the information authentic, complete, accurately dated, and reliably attributable to the employee?
• Does the content actually conflict with documented work restrictions, the employee’s reported condition, or the facts of the claim?
• Has the city consulted the workers’ compensation claims administrator, insurer, or legal counsel before taking action?
• Is there evidence supporting a fraud allegation, or is the content merely inconsistent with assumptions about the employee’s injury or activities?
• Is the city relying on the date the content was posted, the actual date an activity occurred, a location tag, or another fact that has been independently verified?

The city should coordinate with its workers’ compensation administrator and legal counsel before denying benefits, accusing an employee of fraud, or imposing discipline based on social-media content. Conduct that appears inconsistent with a claimed injury may have an innocent explanation and may not provide a lawful basis for discipline.

Time, Location, and Authenticity
Social-media timestamps, edit dates, GPS tags, check-ins, and other location-based information may not establish when or where an event actually occurred. Content can be uploaded later, edited, reposted, scheduled, shared by another person, attributed to the wrong account, or displayed in a different time zone.

The city should preserve the original available information and corroborate material facts through other reliable evidence before drawing conclusions. Potential corroborating sources may include the employee’s explanation, witnesses, work schedules, incident reports, medical restrictions, vehicle or equipment records, access logs, messages, or other lawfully obtained records.

Online Harassment and Threats
Social media can be used to harass, threaten, discriminate against, or bully employees, applicants, elected officials, residents, or others. Online conduct may violate city policies or employment laws when it contributes to a hostile work environment, involves unlawful harassment or retaliation, threatens violence, discloses confidential information, or materially disrupts city operations.

When the city learns of online conduct that may violate its harassment, discrimination, retaliation, workplace-violence, or other employment policies, it should promptly investigate the reported conduct, preserve available evidence, provide appropriate interim protections when warranted, and take corrective action consistent with the findings and applicable law.

A city-operated social-media account and comments posted to it in connection with official business may constitute public records under the Tennessee Public Records Act. The city should maintain and archive those records in accordance with its records-retention schedule and applicable open-records requirements.