Social Media Policies Help Limit Liability


As a hotel executive, imagine that one of the managers you oversee shares that an employee is disparaging you and the company on Twitter. You jump online to find a member of your staff posted the following on a personal Twitter account, along with a photo looking bored and frustrated at work: “I’m about to murder someone at the reception desk! #WorstBossEver #Underpaid #Overworked.”

Incredulous that one of your employees could be so brazen and irresponsible, your first instinct is to terminate the employee immediately. However, it’s imperative that before you formally address the situation, you take a moment to gain a clear understanding of the law.

Hospitality businesses are increasingly using social media to their advantage, but with the surge in online exposure and direct consumer engagement comes a responsibility to implement clear social media guidelines. This includes developing policies that pertain to the use of social media by all hotel employees–not just those who manage your social media accounts. It is imperative that hotel owners and operators are vigilant in their efforts to monitor postings, balancing company interests with employees’ rights to express their opinions and concerns and engage in protected activity.

Employee training
While the use of social media can be highly beneficial when it comes to increasing brand awareness, it can also subject hospitality businesses to increased liability exposure. In fact, employers can be held liable for actions their employees take on social media that transpire during the scope of their employment.

For example, if a disgruntled employee takes to Facebook to complain about a coworker, the employer could face a harassment or defamation lawsuit. Employees should be prohibited from making remarks online that could be construed as harassment or discrimination in any way. Furthermore, hotels must be careful to avoid making, or being associated with, any misstatements about or misrepresentations of a competitor that could potentially lead to trade libel claims.

In order to avoid any potential legal pitfalls, hospitality businesses should craft a social media policy and train employees to follow it. This policy should be outlined clearly and concisely in a handbook that is regularly updated to stay current with new laws and technologies. A company approval process should be implemented, with a designated individual(s), or even an outside service, controlling login information and monitoring posts by employees, guests, competitors and other third parties.

Implementing a procedure for monitoring and screening content will also help to curtail employees’ accidental or intentional disclosure of a hotel’s confidential, proprietary and sensitive information—especially given that competitors may be privy to the postings. Additionally, hospitality businesses should consult legal counsel to ensure they fully comply with all local, state and federal laws.

Protected activities
When developing a social media policy, employers must be mindful that certain employee social media activity is legally protected. The National Labor Relations Board has issued a number of decisions in the last few years that provide guidance on what constitutes protected employee speech under the National Labor Relations Act (NLRA). This line of authority makes it clear that employees may lawfully discuss "concerted activity" through their personal social media accounts. It is unlawful for employers to implement overly broad policies that can reasonably be interpreted as a restriction on the exercise of collective bargaining rights.

In Landry’s Inc. and Its Wholly Owned Subsidiary Bubba Gump Shrimp Co. Restaurants, Inc. (2015), the NLRB found that a social media policy that “urges all employees not to post information regarding the company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business” does not violate the NLRA because employees “could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with [their employer] or each other regarding job-related matters.”

In contrast, a different NLRB judge in 2014 concluded that it was unlawful for The Kroger Company of Michigan to require its employees to post a disclaimer whenever they identify themselves as a Kroger employee and converse with others on their personal social media pages about “work-related information.” The judge reasoned that requiring such a disclaimer would have the “tendency to chill” employees’ protected speech.

Recently, the NLRB found a Chipotle restaurant in Pennsylvania violated the law when it asked a worker to delete certain Twitter postings, such as one that included the phrase “cheap #labor,” and then fired him after he circulated a petition over break policies. “All these postings had the purpose of educating the public and creating sympathy and support for hourly workers in general and Chipotle’s workers in specific,” the judge wrote, finding they were protected under the NLRA.

An employee’s statements made during the exercise of protected conduct will, however, lose protection if they are particularly egregious. The NLRB considers four factors when determining whether an employee’s conduct, despite otherwise being protected, is so extreme as to lose protection under the NLRA: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”

In light of the aforementioned precedent, employers should have experienced legal counsel review and update their social media policies. Language should be clear that nothing in the policy is intended to, or will, be applied in a manner that limits employees’ rights to engage in protected activity. Using Section 7 of the National Labor Relations Act as a guide, this includes, but is not limited to, discussion of terms and conditions of employment as well as working conditions.

Enforcing the policies
In addition to regularly updating employee handbooks and providing training on social media policies, employers should also explain the consequences for violations and apply them consistently. It is imperative that the supervisor or manager tasked with addressing social media policy infractions has a clear and thorough understanding of the applicable law and a strong handle on social media best practices. Moreover, employers would be best served by having all employees sign an acknowledgement form, stating that the employee has read, understood and agreed to all of the policy’s terms. Rules and consequences should also be posted in common areas.

By adhering to these guidelines, and being cognizant of the evolving body of federal and state laws in this arena, hospitality businesses can maximize social media to grow and promote their brand, while ensuring protection from costly litigation.

Originally published in Hotel News Now, September 7, 2016, and republished with permission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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