Parting ways with an employee is rarely a happy experience for either party. And in an employee’s case, whether he or she is being laid off under harsh economic conditions or terminated for another reason, losing a job can be intensely emotional.
Some recently separated employees deal with their emotions privately, finding comfort from family and friends. Others, unfortunately, take to a more public arena to air their frustrations: social media.
What recourse does an employer have against disgruntled former employees who speak out like this? Can situations like this be prevented entirely?
It’s a question many businesses have as social media’s popularity continues to grow — and one with a complex answer. So we asked Vanessa Hodgerson, associate general counsel in Adecco’s litigation department, for an overview on how employers should handle a sticky social situation with a recently separated employee.
First, Try The Practical Approach
It never hurts to try addressing the employee directly, Hodgerson says. Here are a few ideas.
Make The Call
Whenever possible, pick up the phone first in an attempt to diffuse the situation. (It’s easy to misread tone). “I understand you’re upset — if you have a problem, please discuss it with someone internally.”
If you decide to respond via social media, Hodgerson suggests firm, succinct language: “We’re not going to have this discussion on social media; if you have a legitimate concern to raise, contact our HR department. We take these allegations very seriously.”
Find A Friend
You can also appeal to your former employee’s sense of logic by tapping into a still-positive relationship he or she had with a close colleague or mentor within your company.
“In most cases, I’d be willing to bet that there’s someone still at the company that [the recently separated employee] will listen to,” Hodgerson says. “Nine out of 10 times, that cordial relationship will still remain, and if you have that, that person can reach out and say, ‘Look, what you’re doing is stupid — don’t put that out there.'”
Hearing from a friend within your company may bring back some positive memories and help your former employee make the right decision to step away from the keyboard.
Forget The First Amendment
Something that often surprises employees: First Amendment rights don’t apply if you work in the private sector. In other words, if you don’t work for the government, you do not have the right to say anything with impunity after you’ve been let go from a job.
While a recently separated employee may have strong feelings about their former employer — and a need to air their dirty laundry — they should be prepared to deal with the consequences. As an employer, you’re well within your rights to pursue legal action against this foul-mouthed former employee.
Here’s a look at what that legal action might look like.
Send A Cease & Desist
Bottom line: Scare tactics work.
If a phone call doesn’t successfully stop a recently separated employee’s social media rant, a sternly worded letter usually does the trick, Hodgerson says.
A cease and desist letter simply identifies the potentially unlawful behavior and demands it stop immediately, and for good. These letters are not legally binding or enforceable, but it’s often enough just to let the offending party know that you’ve noticed his or her behavior and want it to stop.
File A Suit
No one wants a situation with a former employee to end up in court, but it’s sometimes necessary as a last resort.
As an employer, Hodgerson says, you generally have two options when filing suit against a recently separated employee: a defamation claim, or a breach of confidentiality agreement or trade secret violation.
Defamation is your first line of defense: An emotional former employee may say things that are untrue or grossly exaggerated. If your cease and desist is ineffective, threaten a defamation suit — provided their claims are false.
“If what they’re saying is true, the only significant protection the company is going to have is with respect to confidentiality and trade secrets,” Hodgerson says.
Control The Message: Issue A Statement
If reaching out to your former employee privately doesn’t work, in addition to the legal steps outlined above, you might also consider issuing a public statement. In that statement, you can deny whatever allegations your former employee is making, and expressing regret that the employee has refused to deal with the matter privately.
This tactic is especially useful if your recently separated employee’s social media posts have gone viral. Without stooping to that employee’s level, it’s important to get your side of the story out there in a manner that’s diplomatic and measured — but has the potential to reach a similar audience to your disgruntled former employee’s.
Protect Yourself Contractually
If you know before you’ve even taken steps to terminate an employee that the reaction to being let go will cause problems, a nondisparagement clause may help nip a rant in the bud.
“A nondisparagement clause contractually prohibits a former employee from making any negative or disparaging public comments about the company or its executives,” Hodgerson says. Agreeing to such a clause can be required for a terminated employee to collect severance pay, for example.
Nondisparagement clauses can be difficult to enforce, but as with a cease and desist letter, the mere threat of negative ramifications is often enough to discourage the behavior.
Be Proactive: Create A Social Media Policy
Companies seeking to avoid situations like this altogether would do well to create a social media policy that applies to employees’ online behavior while they’re employed — as well as what’s expected of them if and when they leave the company.
At its most basic, a social media policy should simply outline common-sense rules of engagement for employees, who should consider themselves ambassadors of your brand. According to the Small Business Administration: “Your social media policy doesn’t need to look like a legal document; it should simply outline how your business and its employees will represent itself in a virtual social world.”
From a legal perspective, however, Hodgerson cautions any employer considering crafting a social media policy to have the document vetted by an experience labor lawyer before taking it public.
Under some very narrow circumstances, a policy appearing to prevent employees from making negative comments about their employer on social media could run afoul of certain provisions of the National Labor Relations Act.
Remember: Your Responses Live On
As an employer, there are several roads According to a 2014 CareerBuilder study, 43 percent of employers research their candidates online, including their social media profiles. (And 51 percent of them find information that gives them pause about hiring a candidate, often because they find a candidate has bad-mouthed their former employer or colleagues.)
Just as what your former employee says on social media could come back to haunt him or her as they search for their next job, the same may be true for your ability to attract top talent.
But it’s important to remember that just as many, if not more, of your prospective employees are researching your company on social media. What you say and how you conduct yourself online as a business — including how you choose to react to a recently separated employee’s social shenanigans — can stay with your company on forever.
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