The Ongoing Struggle to Properly Manage Social Media in the Workplace

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By David B. Ritter

Social media is a part of everyday life. Wherever you turn, Facebook, Twitter, Instagram and LinkedIn, to name a few, are ever present.

Social media has likewise invaded the workplace in a big way. The law and workplace have struggled to keep up with the fast pace of these technological and societal changes.

State and federal governments have entered the field of regulation of social media in the workplace in a number of ways. Below, we discuss a few significant developments that all employers should be aware of.

Restrictions on access to social media account

State governments have begun passing laws restricting an employer’s powers related to social media. The most significant trend among state governments is to prohibit employers from requesting or demanding employees’ or applicants’ passwords for their social media accounts.

California, Illinois, Delaware, Michigan, Maryland, Arkansas, Colorado, Utah, Washington, and New Mexico have enacted legislation that prohibits an employer from requesting or demanding social media usernames or passwords. Moreover, legislatures in over 20 additional states are in the process of introducing similar laws to protect employee and applicant privacy.

Although the trend of states passing such social media privacy laws seems likely to continue, there have been signs that some are not sold on this newest wave of legislation.

For example, Connecticut, Hawaii, Mississippi, New Hampshire, and North Dakota have seen proposed bills fail. Notably, New Jersey Gov. Chris Christie recently vetoed such a bill, stating that he would like to see employers have the ability to use social media accounts to investigate allegations of misconduct and that he was against the possibility of employees having the right to file private lawsuits for violations. On May 21, 2013, the New Jersey assembly passed revised legislation accepting Gov. Christie’s recommendations.

Although it is unclear how the legislative debates will impact this trend, employee and applicant social media privacy is a hot issue and will continue to be debated in state legislatures across the country.

The NLRB weighs in on social media

The National Labor Relations Board has taken steps to protect employees’ rights to express their feelings about the terms and conditions of their employment through social media – even if those feelings amount to unflattering complaints about their employers.

At first, many employers may think that this does not apply to them because they do not have a union. Think again. According to the NLRB, these “cyber-gripes” may be protected, concerted activity pursuant to Section 7 of the National Labor Relations Act, which protects the rights of all employees (even non-union employees) to engage in collective activities to secure better working conditions.

For example, in April 2013, the NLRB ordered Bettie Page Clothing, a non-union employer, to reinstate with back pay three employees it had terminated for complaining about company procedures on Facebook. The three employees engaged in a discussion on Facebook about how they were dissatisfied that the store would not close earlier in the evenings when neighboring stores closed, feeling that their safety was compromised by remaining open later. The NLRB determined that the three employees engaged in activity protected by Section 7 because they were collectively discussing their working conditions.

In another more recent case, the NLRB ruled on May 8, that Tasker Healthcare Group did not violate the NLRA when it terminated an employee for his “cyber-gripe.” There, a group of nine current employees participated in a private Facebook group message. The discussion started off as as purely social. However, the tone changed and the employee said, in explicit language and curse words, that the employer should fire him. The employer obliged and terminated the employee when another member of the group disclosed the message.

The NLRB has issued three reports discussing these decisions and other matters related to social media that can be found here.

In light of these decisions, employers should not be too quick to discipline employees for complaining about their jobs online. Although employees are not protected in every situation in which they post objectionable content on their social media accounts, an employer should analyze a decision to terminate under the NLRB’s criteria.

Employers may take action against offensive social media posts if they do not relate to employment conditions. Similarly, social media posts that are threatening, harassing, discriminatory, or obscene are not protected by the National Labor Relations Act and may lawfully result in disciplinary action.

Finally, supervisors are not covered by the National Labor Relations Act, and discipline for engaging in similar activities are not subject to these restrictions.

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Social media policies also under attack

The NLRB has also started scrutinizing employers’ social media policies for violating employees’ Section 7 rights. Recent NLRB guidance has taken employers to task, ruling that common employer policies that may seem harmless on first glance actually violate of the National Labor Relations Act when applied in the social media context.

According to the NLRB, policies that generically require employees to be respectful or not to speak negatively of their coworkers or employer on social media may, according to the NLRB, chill protected activity under Section 7 because they prevent employees from legitimately complaining about their employment conditions.

Similarly, policies that disallow employees from disclosing confidential information, without providing specific examples of what is “confidential” also infringe on employee rights because topics such as employee wages or working conditions might be considered confidential by some employers.

Thankfully, the NLRB has provided some guidance to employers by giving examples of social media policies that comply with the National Labor Relations Act. Employers have a right to issue social media policies that protect against obscene, harassing, intimidating, discriminatory, or unlawful posts. Moreover, employers who provide specific examples of what language is not allowed instead of generic or overbroad statements of being “respectful” or maintaining “confidentiality” are more likely to avoid scrutiny because their policies make clear that protected activities are not included in the restrictions.

Employers with social media policies should review those policies to ensure that their prohibitions are not overbroad and that it is made clear that protected concerted activities are not restricted.

A disclaimer in your social media policy?

Finally, employers should consider placing a statement in their social media policy that nothing in the policy is intended to prevent employees from exercising their Section 7 rights under the National Labor Relations Act. Although the NLRB has stated this, such a disclaimer would not necessarily “save” an employer’s social medial policy, it is one common sense approach for employers to take in an attempt to avoid liability.

There is no doubt that social media in the workplace is here to stay. Not only will employers continue to face greater scrutiny from federal and state government as they attempt to regulate employees, but employer liability related to social media will only increase.

Nevertheless, a recent study by NAVEX Global found that only 63 percent of employers even had a social media policy and only 32 percent of respondents in the survey provided training on preventing harassment and retaliation through social media.

Employers have their hands full. Employers should consult with their attorneys to draft or update their social media policy, ensure they keep up with this quickly changing and dynamic area and to make certain that they remain in compliance to reduce potential liability.

Please Note: This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

David B. Ritter is a partner in the Chicago office of the law firm Barnes & Thornburg LLP, and a member of the firm’s Labor & Employment Law Department. He represents management nationwide in virtually all areas of labor and employment law, including employment discrimination and harassment claims, non-compete, trade secret and restrictive covenants and employment torts. Contact him at david.ritter@btlaw.com.

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