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Employee Use of Social Media: More Headaches for Employers

Labor & Employment Law Update Otto W. Immel, Andrew F. Hettinga

The National Labor Relations Board's ("NLRB") focus on what it considers "overbroad" employer social media policies and what have become known in the media as "Facebook firings" has continued to grow since our last social media update in November 2010 ( Employers are facing increasing danger when disciplining employees over their use of social media, such as Facebook or Twitter, given the NLRB's emerging position that such discipline may violate Section 7 of the National Labor Relations Act ("NLRA"). The NLRB's continued emphasis and increasing activity in this area reinforces the need for employers to institute or re-examine social media policies to make sure they are complying with the law.

The NLRB has filed several new cases in regions across the country related to firings for social media use, challenging both individual terminations and employer social media policies as facially violating the NLRA. They include the following:

  1. In May NLRB Region 13 in Chicago issued an unfair labor practice complaint against a car dealer alleging that the company illegally terminated a salesman after he wrote several critical posts on Facebook. Salesman Robert Becker posted photos and comments on Facebook after a sales promotional event criticizing the dealership for only offering customers hot dogs and bottled water. He noted that customers were unhappy with the quality of food and beverages at the event. Even after he removed the posts at the dealership's request, Becker was still terminated the following week. The NLRB alleges that Becker's post was voicing the "concerted protest and concerns" of several employees "about Respondent's handling of a sales event which could impact their earnings."
  2. The NLRB's Region 3 issued an unfair labor practice charge on May 9th alleging that a nonprofit organization in Buffalo, New York illegally fired five employees for posting critical comments about working conditions on one of the employee's Facebook pages. One employee posted to her personal Facebook page an allegation by a co-worker that their employer (a nonprofit organization) was not doing enough to help the organization's clients. Four additional employees commented on the original post, defending their job performance, criticizing working conditions at the organization, and criticizing staffing levels and workloads. The nonprofit employer fired all five employees who posted, claiming that these employees were harassing the co-worker who made the original comment.
  3. The NLRB's San Francisco regional office recently approved settlement of an unfair labor practice charge involving the termination of an employee who posted complaints on Facebook regarding poor working conditions, which required the employer to post notice stating that employees have the right to post comments about employment terms and conditions on social media pages without fear of reprisal.

It appears that the board will continue to broadly interpret employee comments on social media in order to find that such comments relate to terms and conditions of employment and will pursue unfair labor practice charges even where the employer asserts a seemingly valid reason for the terminations (i.e., harassing another co-worker). However, as we noted in our November Alert, not all employee conduct on social media sites will be protected. The NLRB continues to require that the employee's "speech" posted on social media be related to "protected, concerted activity" (encouraging workers to engage in activity to better their conditions of employment, including soliciting coworkers to join a union, discussing poor working conditions or unfair wages with each other, appealing to the public regarding workplace plights, etc.) before it will protect that speech from employer discipline.

In May, the NLRB concluded, in a memorandum to the board's Phoenix regional office, that a newspaper publisher did not violate the NLRA when it fired a reporter for writing inappropriate and offensive postings on a work-related Twitter account since those postings did not specifically involve employment issues. NLRB Associate General Counsel Barry Kearney said that "discipline pursuant to an overbroad rule [prohibiting employees from engaging in Section-7-protected activity via social media] is unlawful only where the underlying conduct involved Section 7 activity." Specifically, the reporter did not engage in NLRA-protected activity because his tweets "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment;" even if the Daily Star had a policy that could potentially prohibit protected activity, the employer did not violate the NLRA in applying such a policy to the reporter.

Meanwhile, despite this increased scrutiny by the NLRB, recent data shows that employers continue to discipline workers over misuse of social media with increasing frequency: According to a 2011 industry survey, 42 percent of corporations polled admitted to disciplining an employee for misusing social media applications (an 18 percent increase from 2009). Given the great potential for damage to an employer's business that can arise from an employee's irresponsible use of social media, this increase is easy to understand. Employees can inadvertently post about sensitive company information or trade secrets (i.e., posting to Facebook about a new project they're working on); send inappropriate messages of a romantic or sexual nature to co-workers or employees, creating potential sexual harassment liability; publicly disparage the employer and its products or services, or suppliers and competitors, damaging the employer's reputation and good name. Further, more and more employers are reviewing Facebook and other media profiles of job candidates. More than 85 percent of employers responding to another recent poll indicated that they are less likely to hire candidates whose social networking profile or tweets evidence unprofessional behavior.

This combination of the NLRB's increasing vigilance on the issue of "Facebook firings" and employers' increasing willingness to take action based upon employee social media "misconduct" makes it more important than ever for employers to institute or re-examine their social media policies. Although it's critical for employers to tailor such policies to fit the specifics of their businesses and their employees, here are a few more key points to consider including in your policy (in addition to those we suggested in our November update):

  • Although most social media policies have (and should have) language prohibiting "disparagement of the company," these provisions are the ones most likely to get you into trouble. The AMR unfair labor practice case centered around the application of just such a provision, which the NLRB claimed was overly broad and could prohibit protected employee speech. However, the NLRB has issued advice on this topic that illustrates a key point: Make sure to include specific examples of prohibited "disparaging conduct" that are outside Section 7's protection. For example, the NLRB has found a social media policy created by Sears that could not "reasonably be interpreted to prohibit . . . protected activity" because although it generally prohibited disparaging the company, the policy also contained a list of specific prohibitions that were clearly non-protected activity.
  • Policies should address when, if ever, individuals are permitted to identify themselves as company employees, including whether they may list their employer on LinkedIn or Facebook profiles. While such identifications can be a welcome promotional tool for a company, it can present problems if the employee engages in unprofessional behavior. If a policy does allow people to identify their affiliation with the company, they should have to include a disclaimer.
  • However, if employees choose to promote or endorse company products or services, your policy must require that they clearly and conspicuously disclose their employee status. The Federal Trade Commission has recently issued regulations that can impose liability on companies for failing to make those required disclosures.
  • For non-work-related media sites, the best practice is likely to prohibit anyone from using the company logo, trademark or other intellectual property. Further, we advise that policies prohibit employees from linking to a company website via their social media page.
  • Policies should probably require posts to be written in first person singular and use personal email addresses. Policies should also make clear that employees are solely responsible and liable for posts they make outside of the company's request - even activity conducted with company email addresses or through use of company computer systems.
  • If you are concerned that your employees are using social media during work time (and about the hours of lost productivity that can result), your policy can prohibit the use of social networking sites during working time (but not work "hours"). Some companies choose to block access to these sites altogether or simply prohibit using company computers for such activities.
  • Encourage employees to voluntarily submit certain social media behavior (postings, photos, online profile content) that relates to work issues for advice or review prior to posting if they feel the post might violate your policy in any way.

If you have any questions about disciplinary issues or if you would like assistance reviewing, revising or creating appropriate policies, you can contact Andrew Hettinga at (312) 715-5086 / [email protected], Pam Ploor at (414) 277-5661 / [email protected], Otto Immel at (239) 659-5041 / [email protected] or your Quarles & Brady attorney.

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