[Author: David P. Williams]
These are the days of Facebook, LinkedIn, Twitter, YouTube, Pinterest, IM, MMS and SMS. We blog, we tweet, we post, we follow, we like, we comment, we pin, we text—and while doing so, we have blurred the lines between personal and professional lives. A 2009 workplace survey indicated that some 55 percent of employees reported visiting a social networking site at least once a week at the workplace; practical experience suggests that number is low, particularly now that we are in 2012. Regardless, these employees may be commenting on their job, or on you, as their employer. They may be venting about a new policy, or praising a favorable work environment. They may be recruiting new employees, or turning new recruits away. They may be selling your business, or selling your business down the river.
Good or bad, social media is a fact of life. Government regulations have been suggested, and in some cases imposed, with bad consequences coming to employers whose reaction to employee conduct in social media was not thoughtful or educated. With an understanding of some of the relevant issues, employers can implement meaningful and reasonable policies and guidelines for employees and respond appropriately and legally to social media issues that arise. Below are a few of the discrete issues that employers should consider when addressing social media in the workplace:
Class action overtime claims are rampant. Under the Fair Labor Standards Act (FLSA), non-exempt employees posting to social media sites in a manner benefitting their employer may be entitled to compensation, including overtime. Department of Labor (DOL) regulations make clear that it is management's duty to control the hours employees work, through a combination of clear policies and vigorous enforcement, including appropriate disciplinary action.
Thus, employers must address FLSA concerns presented by employees' social media use including, where appropriate, through a social media policy that addresses (and forbids) employee use of social media during non-working hours for work-related purposes without prior approval.
Employers may violate anti-discrimination laws if they use social media in their recruitment of candidates and/or make employment decisions as a result of protected class information learned from those social media websites. Recruiting procedures must carefully weigh the risk/benefit to such social-media “background” checks.
Employees have resorted to social media to harass coworkers—sometimes called “textual harassment.” Employers must have an anti-discrimination and harassment policy that is worded broadly enough to apply to employees’ use of social media.
The Federal Trade Commission (FTC) regulations provide for potential employer liability if an employee makes false or unsubstantiated statements about the employer’s products or services, or endorses his or her employer’s products or services without disclosing the employment relationship—even if the employee’s comments are not authorized by, or known to, the employer. An employer is irresponsible if it does not formally address who may speak on the company’s behalf and control the content of those communications.
Section 7 of the National Labor Relations Act (NLRA) (29 U.S.C. § 157) gives all employees, regardless of whether they are affiliated with a union, the right to engage in concerted activities “for the purpose of ... mutual aid or protection.” In the social media context, employers should take care to ensure that any social media policy does not violate the NLRA by, for example, restricting employees from lawfully discussing their wages and/or other terms and conditions of employment.
In one recent decision, the National Labor Relations Board (NLRB) determined that an employer had violated Section 7 when it terminated an employee for posting negative comments to Facebook about her working conditions and a recent transfer to a less lucrative position, prompting other employee “friends” to add their own negative complaints. In that case, the employer had a policy that prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” In addition to finding the termination unlawful, the NLRB determined that the policy language was unlawful because it did not contain limiting language that would clarify to employees that the policy did not restrict Section 7 rights.
In a memorandum dated January 24, 2012, the NLRB’s Acting General Counsel summarized this and other recent social media cases and emphasized two main points:
First, “[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.”
Second, “[an] employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.”
Thus, the NLRB’s recent interest in social media policies emphasizes the need to not only keep such policies current to address emerging technologies and platforms, but also to address evolving enforcement trends.
Employers must also be aware of and address privacy rights in their written policies. For example, unless a policy states otherwise, an employee may have an expectation of privacy in his or her office or work computer, particularly where the office is private, is kept locked, and/or the computer is password protected. The United States Supreme Court faced the issue of privacy with regard to employer-provided cell phones and pagers in City of Ontario v. Quon. That case involved a police department’s review of the content of an employee’s sexually explicit text messages sent via his department-issued pager. The Court skirted the privacy issue and decided the case on narrow 4th Amendment grounds, but in dicta emphasized the need for well-written policies:
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010). Thus, absent further guidance from the courts, employers must ensure that their social media policies address personal use of company equipment, to overcome any expectation of privacy.
Defamation generally is a false negative statement, communicated to another (published). Because the potential for damages is large in the social media context, employers must ensure that its employees are not using social media to make defamatory statements against fellow employees or competitors.
These are only a few of the significant issues attendant in social media. There are, of course, others that affect specific industries—for example, HIPAA concerns for employers in the medical field. Employers need to understand all of these issues, and to be proactive in addressing them. Having a well-articulated set of policies vetted by an attorney who is knowledgeable in the area is the best protection. Finally, keep in mind that as social media grows and evolves, and as policies are reviewed and considered by regulatory bodies, policies and practices will need to adapt and adjust as well. Lawyers who specialize in this area can save employers significant time and money by ensuring policies and procedures are consistent with ever changing legal and social norms.