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  • InsideTrack
  • September 04, 2013

    Regulating Off-duty Conduct: Social Media and Legal Issues for Employers

    Sept. 4, 2013 – Employers have always had an interest in regulating the off-duty conduct of employees, as it may reflect poorly on the employer.

    In the age of social media and viral videos, however, evidence of employee conduct (or misconduct) can quickly become widespread, and certain use of social media may cause an employer to take disciplinary action. In this video, Madison attorney Wade Harrison discusses managing employee conduct that occurs outside of work.

    “One reason off-duty conduct has become a prevalent issue is because of the changes in technology and the expansion of social media,” said Harrison.

    “Employers now are confronted with issues they did not know existed. For example, if an employee is off of duty for an alleged injury and posts information on Facebook or Twitter or a photo-sharing site that shows them engaging in activity that is explicitly in conflict with their injury, the employer may be forced to address that behavior.”

    Situations arise in political realms too. “There is a case in the eastern district of Virginia where a sheriff was re-elected, and then he fired six employees because they had friended his competitor on Facebook. That case is currently under appeal,” said Harrison.

    What Serves as a Basis for Discharge? And Where Do We Go From Here?

    Even though Wisconsin is an “at-will” employment state, employees have some protections under the state’s anti-discrimination laws, whistleblower laws, or the National Labor Relations Act, while the employer’s interest may also receive some protections.

    “With social media, the technology is changing quickly and this is going to be a prevalent issue going forward,” said Harrison. “Employers are going to have to be nimble to stay current with the technology and in addressing the employment issues.”

    Wade Harrison is a member of Godfrey & Kahn’s labor and employment and health care practice groups in the firm’s Madison office. Wade’s practice involves advising and representing both private and public employers in labor and employment matters.

    Harrison presented “Regulating Off-duty Conduct: Social Media, Use of Lawful Products, and Employee Rights Away From the Workplace,” at the August 2013 State Bar of Wisconsin PINNACLE® Health, Labor, and Employment Law Institute. Select programs from the August institute will be offered as Webcast seminars in the fall.

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