Illustration by Rob Donnelly

Can The Boss Vet My Facebook?

Yes they can...

July, 2016

Q: My boss and I have very different views, and I’ve discovered he’s monitoring my Facebook posts and tweets. He came to my cubicle yesterday and said, “You’d better watch that stuff you post online.” These are my personal views and my life beyond the office. Can I get fired for posts unrelated to work?

Lawyers consider this issue their In Real Life version of “50 Shades of Grey” (though lawyers are rarely as scintillating as the screen version). Remember Laremy Tunsil, a top first-round JulNFL draft pick who dropped to 13th and lost millions in potential earnings after a tweeted video of him getting cozy on a gas-mask bong contraption? Or Olympic swimmer Michael Phelps’s remorse- ful apologies after a tweet of his quick party toke? Never mind that Tunsil swears he was hacked and Phelps didn’t even know about the tweet. In those 140 characters, they were both swept down the walk of shame and diminished funds.

Since I’m prone to a good Facebook rant, too, I took your dilemma to several prominent attorneys, both locally and on the Mainland. I got lots of different answers, but the one thing all agreed on is this: Yeah, you might get fired for it, your boss might even have cause and, since Hawaii is an at-will state, cause is nice but not always necessary. At will means you and your employer enter an agreement where either of you can end the relationship without cause.

Elijah Yip, partner at the Honolulu-based law firm Cades Schutte and chair of its Digital Media & Internet Policy Group, says if you are acting on social media in a concerted way to raise workplace grievances like unfair pay or dangerous working conditions, you’re probably protected. “You have to be trying to effect a change and build a thread that shows concerted agreement among employees,” he said. In other words, name calling and blowing off steam don’t count.

Your boss also has every right to protect his brand, Yip points out, and if your social media posts can be interpreted to damage that brand, you’re at risk. If your company works with tourists, then your posts complaining about tourists ruining Hawaii could suggest your company isn’t loyal to its customers. Boom, you’re out.

Wait, there’s more. Because Hawaii is an at-will state, ongoing social media posts the boss simply doesn’t like could be enough for him to lower the axe. “Being an at- will state means you’re entitled to your opinion,” Yip says, “but it could cost you.”


Q: My boss is supporting Trump this year and keeps telling our team we’ll be sign waving with him this summer and fall. I’m with Hillary and don’t want to be seen near a Trump sign. Help!

November can’t come soon enough, can it? I thought this one was a slam dunk until I talked to those pesky lawyers and, again, the answer is murky.

If you work for a public entity – say, the City and County of Honolulu or the state – the rules are clearer, but, even then, reality sometimes bends the rules. Consider the recent U.S. Supreme Court decision of Heffernan v. The City of Paterson. A detective on the police force in that New Jersey municipality, Jersey Heffernan, was spotted carrying a sign to his car that supported the candidate challenging the sitting mayor. Heffernan was demoted to beat cop, despite his assertion that he was only taking the sign to his bedridden mother, not making a statement at all. His case got bungled when it couldn’t be clearly established whether he was engaging in free speech or not – a right clearly protected by the Constitution – since he was only putting the sign in Mom’s car.

The case bounced up the legal ladder, finally landing on the SCOTUS bench, where, after some head- scratching over the case’s peculiarities, the court reversed the lower court’s opinion and declared that Heffernan was wrongly demoted. (Did I mention this offense took place in 2006, meaning it took 10 years for Heffernan to get justice?)

“Public-sector employees don’t have to participate” in political activities, says Cades Shutte partner Paul Saito, adding that National Labor Relations Board laws “prohibit retaliation against workers who refuse to participate. But in reality, it happens.”

In private-sector jobs, Hawaii’s at-will employment law comes into play. “If I own a business and want my employees to do things that are legal and engage in political speech, that’s their job,” says local plainti s attorney David Simons. So, if the boss is telling the team to take some hours during the day, when they’d otherwise be working, to stand on the corner of Bishop and King with Trump signs, he can do it. If, however, he’s asking you to show up after work or on weekends, that’s a voluntary request, and you can decline.

But here’s where it gets really interesting. Simons went on to point out that Trump’s views might take us into uncharted waters. “You might have grounds if you’re Hispanic because of the Wall,” he opined.

Lastly, remember that even if you have cause, suing an employer is a costly venture and most plainti s attorneys no longer take these cases on contingency, meaning you have to pay to play. Simons sums it up this way: “It’s one thing to have a right. It’s another thing to have a remedy.”


Q: I’ve recently hired a new account executive and he’s doing a great job. The problem is he doesn’t look the part. His hair’s too long, he rarely shaves (or showers), and his clothes look like he’s been on an all-night video-game bender. When he was interviewed, he looked great, so this slouchiness has come as a surprise.

Don’t you hate it when that happens? While most employee hand- books become door-stoppers, your situation is exactly why you need one. If you already have a policy, that’s great. Simply pull the relevant section from the manual and share it with Mr. Slouch, reminding him of the company’s policy on appearance. As with all HR issues, do it in writing.

If you don’t have a policy, now’s the time. Hawaii’s casual style makes it trickier, but, even here, we have standards. While the Equal Employment Opportunity Commission and the courts agree that dress codes create professional atmospheres and are permissible, it’s important to follow strict standards so you don’t wander into discriminatory waters. Sample standards are easily found online, which you should then run by an HR professional or your attorney for a quick review. The best advice: be practical and consistent; don’t be heavy- handed and demand the warehouse workers follow the same rules as the front office, and remember to always walk the walk, making sure your appearance complies.

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