By Arthur Lambert, Fisher and Phillips
Law360, New York (February 22, 2016, 10:37 AM ET) — The words post, like and share have taken on new meaning as social media continues to redefine our society, including the workplace. Employers have recently come under attack by government agencies, such as the National Labor Relations Board, for their social media policies and practices. Failing to follow local and national laws relating to social media can result in a court date posted on an employer’s calendar.
In-house counsel must review social media policies and share their knowledge with employers in order to avoid preparing comments for court when they’d rather be sharing comments on Facebook. Below, I have provided what are, in my opinion, the top five ways social media can land employers in court.
1. Firing Employees For Social Media Posts
In past cases, the courts have found that a violation of a social media policy constituted a legitimate, nondiscriminatory reason for firing an employee. However, there are several recent decisions by the NLRB that hold an employer liable under the National Labor Relations Act for terminating an employee related to social media if the actions are related to protected concerted activity under the NLRA. The NLRB has made a point of protecting employees who discuss their working conditions, complaints and terms of their employment with other employees through social media. Therefore, before making the decision to terminate an employee because of a social media post, employers need to ask:
• Was the employee discussing issues with another employee that may be interpreted as protected concerted activity?
• Was the employee criticizing a management policy or complaining about compensation or other terms and conditions of employment?
If the answer to either question is yes, employers and their legal counsel should know that these types of postings are protected under the NLRA, regardless of whether a union is involved. Employers also may violate NLRB rules if social media policies are so broad they prevent employees from discussing their wages or other conditions of employment. Though it may seem as if employers are defenseless in protecting their name and reputation on social media, they do have the right to take adverse action against an employee if the employee’s social media posts include:
• Complaints and/or threats against customers
• Harassing speech against a co-worker
• Confidential information about the company or client relationships or other information that may harm the company’s reputation in the marketplace
• Information regarding an employee engaging in deception or violating company rules. For example, in most cases a company may terminate an employee for calling in sick and then posting a picture at a St. Patrick’s Day parade or for posting a customer’s private information on a social media site. None of these are good ideas and employers may be able to terminate employees for these reasons. However, it may not be legal to terminate employees for these reasons in states that have laws restricting how much employers can regulate off-duty conduct.
Before implementing policies that may affect off-duty conduct, employers need to review state and federal laws. Some states have laws that protect broad categories of off-duty conduct or require that employers demonstrate a connection between an employee’s engagement in an activity and the employer’s business. In total, at least 31 states have some sort of off-duty conduct law, and social media posts or the information gleaned from them may be covered. Therefore, employers and their legal counsel must take all relevant laws into consideration when drafting or updating a social media policy.
2. Using Social Media in the Hiring Process
Employers who use social media in the hiring process must be aware of the associated dangers. Employers may be opening up the doors to discrimination claims if social media competence plays a part in hiring decisions or if they run across information on an employee’s account that cannot be unseen.
Some companies use social media platforms and campaigns as part of everyday work and need employees to be social media savvy. Is this a problem? The answer is yes, it could be. Social media savvy could be interpreted as discriminatory against people who either have not had access to social media or do not have the resources to use social media and become familiar with it. Therefore, it could be interpreted as a selection tool that eliminates the older, presumably less tech-savvy workers. Also, it could impact poorer workers without access to the multitude of expensive media platforms out there. A way to avoid this is to not require job candidates be up-to-speed on social media, but rather require they are willing to learn how to operate social media platforms upon hire. Employers should offer employees who are required to use social media as part of their job functions with trainings and access to the needed devices.
Employers may risk claims of discrimination not only if they require social media proficiency, but also if they browse through candidates’ social media accounts in the hiring process. In some cases, the initial hiring process is fairly blind and companies can collect amass of resumes/applications without knowing too much information about the applicants.
Therefore, any early decisions made cannot be discriminatory as there is no knowledge of whether or not an applicant is in a protected class. However, if companies routinely search social media on their applicants, they may be exposed to significant amounts of personal information about the candidates. The company may find out the race, national origin, sexual orientation and possible disability of an applicant.
For example, an employer receives an application from “John Doe” containing no improper questions. The employer then looks up the applicant on Facebook and discovers that he recently had cancer, has a same-sex spouse and is Asian. Then, if the applicant is denied employment and sues the employer because he believes the employer was discriminatory in the application process, the employer loses the defense that these factors did not enter into the hiring decision.
In addition to reviewing federal law as it pertains to social media in the hiring process, employers must also review state legislation. Several states have enacted statutes that limit the interception and monitoring of social media. Employers, particularly those that do business in multiple jurisdictions, need to stay up-to-date on all developments in this area. Laws governing employers’ access to candidates’ social media accounts are diverse, however several states, including California, prohibit employers from requiring or requesting employees or applicants to disclose their usernames or passwords to their social media accounts, as well as prohibit employers from requiring the employees or applicants to access their social media accounts in the presence of the employer.
3. Employees Posting Inappropriate Content on Company Platforms
Every employee has a right to work at a place free from harassment and discrimination. There are dozens of stories of employees harassing co-workers through social media. Sexual harassment may occur if, for example, a manager posts comments such as “hot stuff” or “sexy” on every picture a subordinate posts. This could lead to the subordinate feeling uncomfortable. A company that is aware of such harassment and fails to take steps to prevent it could be vicariously liable. Any company with a harassment policy should include social media into the equation. Employees need to be made aware of where and when they will be accountable for their actions.
Social media policies should include provisions prohibiting discrimination and harassment and outlining what action may be taken if policies are violated, e.g. disciplining up to and including termination. This includes threats to co-workers as well. Increasingly, employers are asked to judge whether a post is an indication of violence or merely blowing off steam. In this instance, some states are helping employers by criminalizing such behavior. Some have made it a crime to use a fake name or identity to create a website or social media account, as well as made it illegal to attempt to intimidate or threaten any person through social media.
4. Befriending and Following Employees
Employers who befriend or follow employees on social media may subject themselves to discrimination claims, as they may have access to an employee’s medical history, religious affiliation or other information that would place an employee in a protected class that the employer would not have access to otherwise. Though there may not be immediate repercussions following the employer’s new insight, if the employee is later terminated, he could claim it was because of information the employer had access to on social media.
Further, co-workers who friend one another may compromise workplace morale if they are exposed to one another’s political views, religious views and other personal views and do not agree.
5. Failing to Preserve Evidence
In this era, with so much information being transferred electronically, courts have had to reassess what the term ~~document” means. It now encompasses all communications on social media platforms, including tweets, posts, snapchats, etc. Unfortunately, this leaves companies left to figure out how to keep track of these things in case they enter into litigation or become subject to some investigation in which these documents are relevant. The information seems transitory but often, the more valuable a piece of information is, the harder it is to find.
If companies let a manager post something embarrassing, it will be reposted forever until it is a feature on “America’s Funniest Home Videos.” However, if an employee posts something improper, it often gets taken down before the company can take steps to preserve it as evidence of any subsequent discipline. Therefore, when the employee complains about harassment from a co-worker or a customer complains that an employee has breached some privacy right, how do employers respond and should they keep track of these communications?
Often what we see are screen shots of texts or some post but not the real post, even when it is on the company Facebook account. Screen shots are better than nothing but they produce just what you can see and not the metadata. Often they are incomplete and do not show the full picture —they lack context and therefore are subject to misinterpretation. Having the actual communications is the best course of action. This gives employers the best picture and allows them to assess potential liability, intent and possible steps they need to take to remedy whatever harm may have been caused.
Legal counsel must work with companies to ensure they have a social media policy, which must include retention of these communications. If an employee posts on company Twitter or Facebook accounts, they should not be allowed to delete the post without approval. It is prudent to have some method of archiving this data —have an “Internet Czar” responsible for overseeing such content and the company rules related to the use of social media.
Even if companies store any comments into a Word document, it is better than nothing. As part of the policy, employers should also make sure to clarify that any posting on company social media is the property of the company along with the accounts, usernames and any other information associated with the accounts. This way, when an employee leaves, the account information stays with the company. Make sure employers clearly communicate the policy with all employees. Social media archiving is becoming big business —use it. Get with people in IT to make sure you have the means to preserve all posts, when you need to.
Though social media is widespread and loved by many, it can lead to a major headache for employers. Legal counsel should guide employers and share all necessary information that may help employers to craft and post legally enforceable social media policies.
—By Arthur V. Lambert, Fisher &Phillips LLP
Arthur Lambert is a partner in Fisher &Phillips’ Dallas office. He has experience advising and defending employers in all phases of labor and employment matters, including those involving sexual harassment, discrimination, wrongful termination, and Fair Labor Standards Act disputes.
The opinions expressed are those of the authors) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general