Here's my latest for The Legal Geeks where I discuss the recent firing of eight streamers from a popular stream team. Due to the unusual circumstances surrounding their employment, and their termination, this situation raises some important contract law questions. Give the article a read, and let me know what you think!
Termination of Streamers' Employment Raises Contract Questions
Disclaimers abound on social media profiles, but to what effect? One of the most frequently used disclaimers is “words are my own and do not reflect my employer,” or something to that effect. Such language is added to social media profiles for two reasons:
The supposed purpose for adopting such language in a social media profile is to distance one’s personal comments from their employer and/or affiliates for legal considerations. However, this disclaimer, and its many variations, has no legal effect.
When businesses require employees to use disclaimers, the business believes that such language may protect the business from any brand damage the employee may cause, and possibly even protect the business from being legally liable for the employee’s comments. However, both of those notions are false assumptions. Businesses are not insulated from brand damage because their employee makes it clear that he/she is expressing their personal opinions. If the employer can be determined from the social media account, then the employee is inextricably linked with the employer. This linkage is the reason why businesses can face public backlash for their employee’s actions on social media, which generally results in the employee being fired.
There have been numerous instances where an employee’s conduct on social media has resulted in public backlash against the company. For instance, the Brookfield Zoo in Illinois was recently inundated with complaints of an employee’s allegedly racist social media post. As a result, the zoo terminated the employee and issued a statement hoping that guests would not “let the actions of one individual overshadow the longstanding good work” that the zoo has accomplished. The zoo’s statement reflects the notion that it understood that its brand may have been damaged by the actions of a single employee. Additionally, nothing in this example would change if the employee included disclaimer language in her profile. Despite the disclaimer, patrons of the zoo would still complain to management about the employee’s statement, the zoo would still terminate the employee, and it would issue exactly the same statement.
Further, despite a profile containing a disclaimer, an employer may still be liable for the employee’s conduct on social media. Liability can attach to an employer when the employer had the right, ability, and duty to control the activities of their offending employee. Given the prevalence of social media apps for phones, it is not uncommon for employees to utilize their personal social media accounts in the workplace. However, it is the employer’s duty to police the workplace. Therefore, if the employee posts inappropriate content while at work, or if the post contains sensitive work related information, it may be more likely that liability would still attach to the employer.
Additionally, the notion that an employee cannot be legally fired for their social media posts because a disclaimer was present is false. Despite a disclaimer, employees can be fired for the content they post on social media. There are only a few circumstances where a social media post cannot result in an employee’s termination. State and Federal discrimination laws protect employees from being fired on the basis of the race, national origin, sex, and other categories. Therefore, an employer cannot terminate an employee for a social media post on the basis of those categories. Further, an employer cannot terminate an employee for engaging in protected concerted activity. Pursuant to the National Labor Relations Board, concerted activity occurs when two or more employees take action for their mutual protection regarding the terms or conditions of their employment. This can be as simple as multiple employees discussing work related issues such as pay or safety concerns. Such conversations occurring on a social media platform have been recognized by the NLRB to constitute protected activity as well, and thus cannot be the basis to terminate an employee.
Understanding that social media is a growing area fraught with risk for a brand, and with no help being offered by disclaimers, businesses are now beginning to monitor their employees’ social media accounts. Although some may perceive this monitoring as a needless exercise to police employees’ private lives, it is the only way for a business to be proactive regarding inappropriate content that is posted which has the potential to damage its brand. If the business were able to catch an inappropriate post before it went viral, the business can take steps to protect itself from potential brand damage. Unfortunately, such monitoring is necessary because disclaimers do not offer the protections they are believed to have.
(This post initially appeared on Esports Entrepreneur, a website dedicated to providing the necessary resources and content to help create profitable and sustainable eSports businesses)
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