[authors: Maria Crimi Speth and Jeffrey Silence]

In 2012, most employers are engaging the public with social media sites such as Facebook, LinkedIn and Twitter. These social media sites can be cost effective ways to generate new business in a world where people spend more time on social media sites than ever. Indeed, social media is no longer an option, it is a necessity. Although social media is great for developing your business, it is not without its pitfalls. There are an increasing number of cases where an employees' use of social media has created problems at the workplace.

For example, the chief editor of a hi-tech blogging site (PhoneDog.com) established and maintained a Twitter account on behalf of Phonedog.com, which he used to discuss the latest and greatest smart phones. The employee-editor accumulated 17,000 followers over a course of years using the Twitter account, which was held in PhoneDog's name. When he left his job, he changed the Twitter account name to his own name and kept the 17,000 followers. The employee then posted articles he had written for other hi-tech sites on the Twitter account, a move PhoneDog.com said was not fair because the Twitter account was established in its name, and it had used its resources to help establish the account. PhoneDog.com claims that the account's password and the 17,000 followers are proprietary, confidential information. The employee argues that PhoneDog.com told him the account would remain his forever and that he therefore owns the account, along with the followers, and can do whatever he wants with it.

Ownership disputes are certainly not the only problems in the social media world. The most common problems employers often face are cases where an employee posts disparaging comments about his employer using social media. In a recent case that has drawn considerable public interest, a sheriff's deputy in Virginia was fired after he "liked" his boss's political opponent's Facebook page. A federal district court judge in Virginia held that the employee's decision to "like" the opposing candidate's page was not protected under the First Amendment because "liking" something on Facebook is not speech. This case is pending appeal, and many believe there is a good chance that the Circuit Court of Appeals will find that a "like" is speech for First Amendment purposes.  Since the deputy worked for a governmental agency, his termination could have been a violation of the First Amendment right to free speech.

Perhaps the most famous social-media drama to date involves the fast-food chain, Chick-fil-A. The saga began when Chick-fil-A CEO, Dan Cathy, stated on a radio show that he is opposed to gay marriage. The story became a national headline, in part, because millions of people expressed either their outrage or their support using social media sites such as Twitter and Facebook.  An Arizona man was one of the people who was outraged by the comments. To show his disgust, he posted a video on YouTube of himself driving through the Chick-fil-A drive thru. In the video, which was seen by hundreds of thousands of people, the man belittled the drive thru employee by asking her, among other things, how she could work for such a hateful corporation. Soon thereafter, the Arizona man was fired from his job as the CFO of a medical-manufacturing company.  Because his employer was a private company, his termination, unlike the deputy's, does not have First Amendment implications.

Certainly the legal landscape for social media disputes between employers and employees is evolving, and much has yet to be determined. There are, however, many things an employer should consider when drafting a social media policy. If an employer wants to stake a legal claim to a social media account, it needs to make sure its employees know that it owns the social media account, not the employee. Also, employers should warn their employees that if they want to comment about their company or their work environment using social media, they should include a disclaimer that the comments are the views of the employee, not the employer. Finally, make sure to warn employees not to share confidential or copyrighted material.

All of these warnings will save employers considerable time and money. Equally important, such policies will create a better work environment for both the employer and the employees. If you would like assistance in creating a social media policy, please contact us at Jaburg Wilk. We can also help you if you are an employee who believes he was wrongfully fired for posting material on a social media site.

It is important, however, to have legal counsel involved when drafting a social media policy and when disciplining an employee for posting comments on a social media site. Otherwise, an employer that attempts to create their own social media policy or discipline an employee may very well violate Section 7 of the National Labor Relations Act (the "NLRA"), which applies to both union and non-unionized work forces.  It states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."  An employer that disciplines an employee who engages in "concerted activity," or an employer that posts a broad social media policy prohibiting such protected activity, violates the NLRA and may also violate 29 USC §158(a)1.

At the time the NLRA was ratified, the digital world did not exist. Recently, however, the NLRB has made it clear that social networking sites such as Facebook and Twitter, as well as personal blogs, are platforms where employees may engage in "concerted activity." In August 2011, the NLRB released a General Counsel Report, which analyzed its investigation of approximately 14 cases involving social media and alleged violations of the NLRA.  (See https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases).  Though the Report does not draw definitive lines as to what constitutes protected activity, it does cite guidelines for deciding when an employee's use of social media may be considered protected activity.  For example, postings that may be protected activity will:

• Discuss terms and conditions of employment
• Have co-workers involved in the posted discussions
• Directly relate to or come about from earlier discussions
• Invite coworkers into action

If you would like assistance in creating a social media policy, please contact us at Jaburg Wilk.

About the authors: Maria Crimi Speth is an attorney at Phoenix law firm of Jaburg Wilk and chairs their Intellectual Property Law Department. She is a frequent speaker on intellectual property law, internet law, trademark and copyright law and is the author of the book Protect Your Writings: A Legal Guide for Authors. She can be reached at 602.248.1089 or mcs@jaburgwilk.com.  Jeff Silence is an attorney at Jaburg Wilk. He focuses his practice on general litigation and appellate law. He can be reached at 602.248.1079 or jxs@jaburgwilk.com.