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Sept. 17 — The seemingly trivial Facebook “like” button, which users press to indicate approval of another's posted opinion, can spell serious trouble for an employer's social media use policy.
That's because an employee's public Facebook complaint about company policies, even if vulgarly stated, can turn into concerted activity to improve working conditions that is protected under Section 7 of the National Labor Relations Act if other employees “like” it, Michael Moschel, a management-side attorney with Bass Berry & Sims in Nashville, Tenn., said at a Sept. 16 presentation sponsored by the Human Resource Association of the National Capital Area in Washington, D.C.
An employer may not discipline employees who are engaged in concerted activity, he explained, but an employer can discipline an employee whose conduct interferes with business operations.
Thus, it's essential “to distinguish between individual gripes and initiation of group activity,” Moschel said. That's where the intricacies of social media sites like Facebook come in: comments on posts and ensuing discussion “may convert the initial post into protected activity,” he said.
If employee social media conduct “happens on the clock, it is entitled to less protection,” Moschel added. That's because employees should be working, and can be legitimately disciplined for engaging in social media activity instead, he said. However, such discipline has to be meted out consistently, Moschel said, and not just to employees who criticize the company on social media.
“Employers are generally limited in their ability to discipline employees for off-duty conduct,” including social media activity, Moschel said. However, he said, employers have a right to protect their legitimate business interests and a duty to protect employees and customers, so they may discipline employees for off-duty conduct on social media where it has some impact on those interests.
Be careful when imposing such discipline, Moschel advised, to verify the accuracy of the information. Beware of lifestyle anti-discrimination statutes, he added; for example, Kentucky and Tennessee have laws barring discrimination against smokers.
Also beware of other discrimination claims, Moschel cautioned. For example, he said, if an employee calls in sick but posts on social media that she is at a lake, she can be disciplined. But if she mentions a cancer diagnosis in the same post, any discipline would be risky, he said.
When it comes to discrimination, harassment and bullying, any employee could potentially use social media for any type of misconduct, “which could be imputed to the employer,” Moschel warned. Thus, employers “have an obligation to redress complaints of unlawful harassment or discrimination known to the employer where it is related to the workplace (even where the conduct occurs off duty).” Moschel said his advice is that employers should not be social media friends with employees, to avoid getting overly entangled in their off-duty conduct.
Employers should also be cautious in their use of information gleaned from social media in the hiring process, Moschel said. “We can find out a lot about our applicants now, before they ever set foot in the door. Social media content may be used by employers, but employers must be especially careful!” he said.
That's because, Moschel explained, using social media websites for recruiting could lead to disparate impact claims, and “failure to hire suits are hard to defend against.” Employers that want to use social media information on candidates should therefore consider having a third party, he said, which is not otherwise involved in the hiring process, screen the information and provide a “sterilized report.”
Further, Moschel said, it's important to use the information in a nondiscriminatory manner and keep records of all the information reviewed and used in any employment decision, in case that use is later challenged.
“Do not make employment decisions based on lawful off-duty conduct,” Moschel cautioned, and also, don't believe everything you read online—derogatory information may not even be about the right person.
Moschel indicated that it's rare for employers to request social media passwords from employees, but there has been “a rash” of state laws preventing them from doing so.
Employers must develop written policies on employee social media use, Moschel said. First, the company should “assess business concerns [and] determine what types of limitations on social media work best for your workplace,” he said.
• cover confidentiality and the need for employees not to disclose trade secrets on social media;
• if there is a company owned social media account, clarify that it's property of the employer and that employees must relinquish login credentials upon departure;
• not unlawfully restrict employees' NLRA Section 7 rights to engage in protected activity;
• allow for the fact that specific workplace complaints have more protection under the NLRA than general statements, and that expletives do not necessarily cause posts to lose that protection;
• encourage employees to report online misconduct;
• avoid rules that prohibit concerted criticism of the employer or criticism in a public forum;
• not ban “false” statements, because only “maliciously false” statements are prohibited;
• avoid overbroad anti-harassment rules;
• not apply online “courtesy rules” to statements about employers, supervisors or management; and
• not prohibit employees from using the company's name and logo in a labor protest, which qualifies as a “fair use exemption.” Instead, Moschel said, a warning about copyright law will suffice.
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