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By Spencer Hamer, Michelman & Robinson LLP
Social media has pervaded the workplace. At any moment, your employees might be updating their Facebook status, following celebrity tweets, or networking with colleagues on LinkedIn. A 2012 report by SilkRoad Technology revealed that 75 percent of employees access social media daily on the job, with 60 percent doing it multiple times per day. Almost half the respondents indicated that connecting with co-workers was the top reason to use social media at work. Only 23 percent of the employees, however, had received a social media policy from their employers, and fewer than 10 percent had received social media training.
A new body of law is growing to address social media in the workplace. Employers must balance their business needs against employees' freedom to engage in personal pursuits. And specific industries face unique challenges, such as technology companies afraid of losing the secret behind their latest application, or a medical practice trying to maintain patient confidentiality.
What does this mean for employers? Developing and implementing an effective social media policy is critical. Achieving a balance between employers' interests and employees' rights, however, can be difficult.
Employers have discovered that social media can have many benefits, including increasing website visitors, enhancing brand awareness, and building client relationships. However, social media has also subjected employers to increased liability exposure. For example, employers can be held liable for employee actions done within the course and scope of employment. So, if an employee uses Facebook to post false statements or rumors about a competitor or co-worker, that employee might expose his employer to potential defamation claims. In addition, misstatements or misrepresentations about a competitor could lead to trade libel claims. Online dissemination of employees' disparaging or inappropriate comments is another concern. Thus, employers need a clear policy setting forth in advance the parameters of proper social media use.
When developing a social media policy, employers must be mindful that certain employee activity is legally protected. Over the past two years, the National Labor Relations Board (NLRB) has issued decisions and guidelines regarding the nature of protected employee speech under the National Labor Relations Act (NLRA).1Under this line of authority, employees may lawfully discuss “concerted activity” through personal social media accounts. The NLRB has found unlawful overly broad policies that can reasonably be interpreted as a restriction on the exercise of collective bargaining rights. Online discussions relating to wages or working conditions, for example, are protected under the NLRA, because employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
For example, in a 2012 NLRB decision, Hispanics United of Buffalo, five employees were discharged for Facebook comments they wrote in response to discovering that a co-worker intended to complain to a supervisor about their alleged substandard job performance.2 The NLRB found that the communications constituted concerted activity that was protected under Section 7 of the NLRA. Similarly, in Costco Wholesale Club, the NLRB held that the appropriate inquiry in social media cases is whether the policy would “reasonably tend to chill employees” in exercising collective bargaining rights.3 Costco's blanket policy banning workers from posting statements online that harmed the company's—or anyone else's—reputation, was held to be unlawful. The NLRB noted that the policy had no exclusion for legally protected communications.
Nevertheless, private employers are not required by the First Amendment of the U.S. Constitution to tolerate all forms of speech in the workplace, and employees do not have free reign to denigrate their employers. “Cisco Fatty,” a young University of California student, made headlines after getting fired over a tweet about her internship, which read, “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”4 Cisco rescinded her offer. The employee did not challenge Cisco's decision, but it appears unlikely that this type of speech—having no connection to any complaint about actual or potentially unlawful working conditions—would be legally protected conduct.
In addition to the NLRB, state legislatures have been active regarding social media policies. Maryland, Illinois,California, Michigan, Utah, New Mexico, Arkansas,Colorado, Washington, Oregon, and Nevada have all passed bills that, in some form, prohibit an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices. Many of these states also prohibit an employer from forcing employees or applicants to log in to their accounts in the presence of the employer. And retaliation against an employee or applicant for refusing to provide access to a social media account is unlawful in most of these states. Some states have carved out exceptions, however, for legitimate needs, such as workplace investigations. Furthermore, public employers must consider an entirely separate body of law that protects certain speech by public employees.
The bottom line is that employers must be aware of the evolving body of federal and state law on social media when crafting a policy.
Employees' use of social media has blurred the line between business and personal interactions. For example, it is now commonplace, if not expected, for co-workers to friend one another on Facebook. An employee with a romantic interest in a co-worker, however, can quickly cross a line between friendly conversation and harassing conduct. And if a work relationship sours, social media can provide an easy outlet for harassing, discriminatory, or retaliatory conduct.
For example, an employee at the Library of Congress claimed he was harassed, discriminated against, and eventually fired after he liked a Facebook page promoting gay adoption.5 Despite an exemplary work performance record, the employee claimed that after the action on his Facebook wall, his supervisor's daughter posted, “You're not one of those weirdos, are you?” The employee claimed he was subsequently subjected to ridicule at work, lectured about religion, and sent photos of assault rifles with a banner that read, “Diversity—Let's Celebrate it.” The supervisor then confronted the employee about his sexuality and told him he could never succeed because it was “against God's law.” The employee claimed the harassment only increased and that his supervisor assigned impossible work tasks, setting him up to fail. He filed a complaint with the Equal Employment Opportunity Commission, and took disability leave for severe anxiety issues. After the supervisor canceled the employee's health insurance retroactively, and he was unable to pay his rent, he brought a lawsuit against the Library of Congress.
In addition to prohibiting certain behavior, employers should suggest that employees use caution when posting on social media websites. The likelihood that something posted online never gets deleted is high, and employers should remind employees of this. Although certain online conversations about co-workers are technically protected, as a best practice, employers should discourage employees from discussing co-workers online. This is a particularly sensitive area when supervisors are involved, as employers can be held liable under federal and various state laws, in certain circumstances, for harassment committed by supervisors.
Confidential and proprietary information of employers disseminated to the public can result in jarring consequences, especially if the information can be accessed by competitors. Disclosure through social media can occur even where employees are not seeking to harm the company, but rather are excited about a new product, marketing strategy, or merger. Employees who carelessly post confidential information might also breach a fiduciary duty and expose the company to liability, particularly if the information of third parties is involved. In addition, posting pictures or content can implicate copyright and trademark laws.
Last year, a mobile phone website sued a former employee alleging that the 17,000 Twitter followers he gained while working there were exactly the same as the website's customer list, and thus did not belong to him.6 In another case, the co-founder of a company was fired, and she sued her former employer after it allegedly briefly took over her LinkedIn account.7 In a countersuit, and after she had reclaimed the LinkedIn account, the company claimed that she was misappropriating trade secrets. Although the court ultimately held that the contents and connections of the LinkedIn account did not constitute “trade secrets” because they were generally known to the wider business community via the LinkedIn website, it is a good example of the need for an explicit and clear social media policy.
Therefore, employers should include in their social media policies prohibitions on posting confidential or proprietary information on social media accounts. Among other things, the policy should require employees to identify all copyrighted or borrowed material—getting permission when required—and giving credit to the original authors.
Employers should not only provide the rules to employees for social media usage, they should also explain the consequences for violating the social media policy. Some actions may be more serious than others, resulting in termination, rather than just a warning. Employers should ensure that all employees sign an acknowledgement form, stating that the employee has read, understood, and agreed to the policy. The policy should be incorporated into the employee handbook and posted in common areas. Furthermore, the social media world evolves virtually minute-by-minute, and policies can become outdated quickly. Once you have clarified the boundaries and guidelines of the policy, make sure to monitor the policy in real time and update it regularly, to incorporate the latest social media sites and trends. The policy should be reviewed and revised, at a minimum, annually.
Employers should take the following steps when creating a social media policy:
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