Employee Social Networking – Hidden Dangers for Employers
Labor & Employment Law Alert 11/17/10 Andrew F. Hettinga, Otto W. Immel
Imagine you are a supervisor for a group of employees, several of whom have added you as a "friend" on Facebook. One morning, while flipping through your Facebook news feed, you come across a status update from one of your employees complaining about how much she hates her job: she isn't paid enough; the conditions in her office are unbearable; she can't stand her boss (you!); she doesn't get enough vacation time; she hates selling the worthless junk your company sells. Another of your employees comments on her status update, proclaiming how right she is, and that they should do something about it. You are incensed and terminate one or both of the employees the very next day. But have you potentially broken federal labor law, even if neither of these employees is a union member? The answer is yes, according to the National Labor Relations Board.
Of course, we are all aware that "social networking media" are omnipresent in our daily lives: Millions of Americans use Facebook, MySpace, YouTube, LinkedIn, Flickr, Twitter or their own personal blogs every day to converse, post pictures and messages, share personal profiles, opinions and information. Undoubtedly, many of these blog entries, Facebook posts, video logs or Tweets contain details or information relating to the poster's employment. A bad day at work can easily result in a nasty status update, as can a promotion or a raise. Pictures or videos may show the inside of your office or work floor, or be taken at a work-sponsored event. Employees may tweet about their co-worker's personal lives or post sexually explicit materials. The ever-increasing connection between an individual's use of social networking media and their job generally presents two distinct kinds of risk for employers: (1) the potential for breaking federal labor law by firing or taking adverse action against employees based on their use of social media; and (2) legal liability stemming from what employees are posting on social media related to your company or their employment.
Can you fire that employee for posting nasty things about you on Facebook?
The short answer is: It depends. Such a termination may run afoul of the National Labor Relations Act ("NLRA"), which has long protected the rights of all employees -not just those who already belong to a union - to communicate with each other as they seek to better the conditions of their collective employment. For over 70 years, Section 7 of the NLRA has been used to protect employees from discipline or termination for engaging in the "concerted activities" of soliciting co-workers to join a union, discussing poor working conditions or unfair wages with each other, appealing to the public regarding workplace plights, and other communication activities. Although many employees don't realize it, Section 7's protections apply to any employee, regardless of their union status. And where once Section 7 protected such activity taking place via leaflets, handbills, postings on bulletin boards, letters to the local newspaper, or conversations around the water cooler, however, it now protects that activity as it moves to Facebook, MySpace, Twitter and other social media.
A recent action filed by the NLRB provides the best cautionary tale: On November 3, 2010, the NLRB's Hartford regional office filed a complaint against the American Medical Response of Connecticut ("AMR") for terminating an employee over some social network posts. This complaint contends that the posts at issue - several negative remarks about her boss posted to the employee's Facebook page - constitute protected concerted activity, because the employee was complaining that she had been denied union representation, and these comments "drew supportive responses from her
co-workers." The employer claims that the employee's message on Facebook violated the company's Internet policies, which apparently prevented employees from discussing work on social media sites (although the specifics of that policy have not yet been made public). AMR's representative told the AP: "If you're going to make disgusting, slanderous statements about co-workers, that is something that our policy does not allow." However, the NLRB's Jonathan Kreisberg, director of the Hartford office, said that this policy is overly broad and constrains speech otherwise protected by Section 7 of the NLRA. According to Kreisberg, while Section 7 has some limits on what employee speech will be protected, such as not allowing employees to disrupt the workplace or engage in threatening conduct, the employee's Facebook comments did not cross that legal line: "Here she was on her own time, on her own computer and on her own Facebook page making these comments," Kreisberg said. "If employees are upset about their supervisor and get together on their own time [to] talk about him, criticize and call him names, they can do that." More specifics about AMR's policy - and exactly what types of speech or conduct it prohibits - will be sure to surface during the Board hearing on this complaint scheduled for January 2011, and employers across the country will undoubtedly be paying close attention. In the meantime, though, it appears that the NLRB considers employer policies preventing employees from mentioning their workplaces in any way whatsoever, or from discussing their supervisors, company management, pay, or even specific employment decisions, to be overly broad.
When considering disciplining an employee for posting statements about your company via social media, employers must ask some critical questions before taking such action in order to avoid the potential for liability under the NLRA. First, employers should consider whether the post represents "concerted activity" between employees: Is the message directed at one or more other employees? Does the post suggest (either explicitly or implicitly) that employees take some action to improve working conditions? Is the post from a "spokesperson" employee relating to a matter of common concern? Is the post summing up, discussing, or otherwise "logically growing out of" a previous union or employee group activity? If the answer is "yes" to any of these questions, that post is likely "concerted activity" and protected under the NLRA.
Second, employers should consider whether the post is "for the mutual aid and protection" of employees: Does the post discuss working conditions or some tangible workplace issue? Does the message relate to wages, hours, schedules, the physical environment of the workplace, dress codes or working assignments? Does the message intend to alert the general public about some potential health or safety violation at the workplace? Does it urge co-workers to vote in favor of laws affecting employment, criticize or urge opposition to the employer's implementation of new employment policies? Again, if the answer is "yes" to any of these, you are dealing with potentially protected conduct. Although the questions above derive from 70 years of federal case law applying Section 7 in the realm of "traditional communications," courts and commentators have long noted that these decisions will likely apply with equal force to protect communications occurring via social networking sites or blog posts. The AMR complaint shows that at least one regional NLRB office agrees with that assessment as well.
There are certainly limits to what an employee can say, even in service of "concerted activity" for "mutual aid and protection." Most notably, under the so-called "disloyalty exception," employers can terminate an employee even for otherwise protected speech, if that speech is exceedingly disloyal to the employer or disparages its business. However, this doctrine may be applied narrowly, and employers should consider carefully whether this exception will apply on a case-by-case basis: As the AMR complaint above shows, a "blanket policy" that generally bans "disloyal speech" against the company may be considered overly broad by the Board. Further, certain states may also have laws limiting what action(s) employers can take against their employees based on "off-duty" conduct that may be implicated by terminating or taking adverse action against an employee based on their social networking activity. In short, employers should use caution and should probably consult with counsel well-versed in Section 7 issues, before terminating or disciplining an employee solely for a message, post or other use of social networking media.
Can an employee's use of social media expose an employer to legal liability?
The short answer is: yes. Just as a careless employee driving a company vehicle can create liability for his employer by crashing into another car, so can an employee's use of social media expose you to liability both inside and outside your workplace. Employees using social media may defame another individual; they may infringe on trademarks or copyrights; they may disclose trade secrets, or private customer or co-worker information. Further, the use of social media by your management personnel may greatly increase your exposure to discrimination or harassment charges and lawsuits. For example, managers or supervisors may post offensive pictures or language on their Facebook wall that are seen by
co-workers or employees. Other employees may comment upon these images or posts, leading to direct communication between co-workers about these personal issues that may be inappropriate. For another example, your human resources personnel may be reviewing potential applicants' social media pages when making employment decisions - say, checking an applicant's Facebook page before hiring them. Your hiring decision maker has now, however unwittingly, become aware through viewing the applicant's home page or profile picture that this person is homosexual, has a potential disability, is a smoker or is a member of a certain race, which he or she would not have been through the general application process. As we all know, it can be difficult later on to prove that such information wasn't used in making a decision in violation of state or federal law.
The best way for employers to combat such liability is to enact policies limiting what employees can post about work on social networking sites. By this time, most employers will have a technology policy in place that attempts to limit use while at work of social networking sites or similar resources; but how successful such policies are is doubtful at best: According to a 2009 survey by Deloitte LLP, 20 percent of employees admitted to checking social networking sites during work hours. Employers have been slower, however, to set up policies that govern what an employee can post about their employment (either from their office computer or from home) on a social networking site. Such policies should ideally synergize the employer's existing policies regarding confidentiality and trade secrets, harassment and discrimination, protection of the organization's property, privacy, and others.
Specifically, these policies should make clear that, in their social networking activities, no employee should, among other things "speak" on behalf of the company without authorization; disclose customers, partners or suppliers by name; disclose information about the internal structure, policies or strategies employed by the company; write about, post pictures of, or otherwise refer to any other employee without his or her permission. Such policies might also prohibit supervisors and management from "friending" employees or job applicants, or otherwise connecting with them via social media.
Employers who do want to review social media prior to making employment decisions should have a policy governing such use, which (at minimum) lists the social media that will be viewed and the lawful information that the employer desires to learn from these visits (i.e., regarding illegal drug or alcohol use, work ethic or writing communication skills, to verify resume information, racist or discriminatory tendencies, etc.), makes clear that the searches will be performed by a neutral third party and will be uniformly applied. Finally, every employer should have a policy regarding email and internet use that makes clear employees should have no reasonable expectation of privacy on the organization's computers, email systems and internet connections, and that information exchanged on social networking sites can and will be accessed by the employer.
The widespread use of social media requires employers to re-evaluate their existing policies and practices or draft new ones to minimize their potential for legal liability. If you have any questions or would like assistance reviewing, revising or creating appropriate policies, you can contact Andrew Hettinga at (312) 715-5086 / firstname.lastname@example.org, Pam Ploor at (414) 277-5661 / email@example.com, Otto Immel at (239) 659-5041 / firstname.lastname@example.org or your Quarles & Brady attorney.