Savvy HR professionals know that social media is an area of rapidly developing employment law, and that any company handbooks or policies addressing social media usage must be carefully crafted and continuously updated to reflect ongoing changes. So, the question is: what can you do to help your company avoid potential liability when it comes to employee social media use?
How Did We Get Here?
It is helpful to take a look back at the evolution of how various governmental agencies approach the issue of social media in the workplace, specifically the National Labor Relations Board (NLRB or Board). In late 2011, General Counsel for the NLRB issued its first memorandum discussing cases where the NLRB found employers to have violated federal law by disciplining employees for their postings on social media. Over the next few months, the Board issued two other memorandums discussing how employers’ social media policies could be overbroad and, thus, in violation of federal law. The NLRB has since issued multiple case decisions going even further by finding that policies requiring employees to be “courteous” on social media was too broad under the law. Remember: when we talk about the NLRB, we are talking to all employers because the National Labor Relations Act (NLRA) applies to all employees regardless of whether there is a union at your workplace!
In September 2012, the NLRB issued its first decision on an employer's social media policy, finding that Costco Wholesale Corporation's policy violated the National Labor Relations Act by restricting Costco employees from engaging in protected, concerted activity via social media. Under Section 8(a)(1), it is an unfair labor practice for an employer to "interfere with, restrain or coerce" employees in the exercise of their rights guaranteed in Section 7. Under Section 7, employees have the right to self-organize, to join unions and to engage in "other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Employees do not have to work for a unionized employer to be protected by this provision.
Costco's social media policy stated:
"Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person's reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment."
The Board concluded that, because the policy failed to provide an exception for employee statements protected by Section 7, employees could assume that the policy restricted those rights. In other words, since the policy prohibited employees from making statements "that damage the company, defame any individual or damage any person's reputation," the Board ruled that the policy might keep Costco's employees from certain concerted activity, such as protesting Costco's treatment of employees.
This decision confirms what employers long feared: that the NLRB will blindly protect employees' right to criticize their employers via social media. As mentioned above, the NLRB has hinted at this outcome with three memorandums previously issued, all of which indicated the Board's willingness to expand the definition of protected concerted activity to include social media.
It is worth noting that facing an investigation (and possible prosecution) by a federal agency can be very costly and damaging to a company's brand. As this case makes clear, a well-meaning, but broadly worded social media policy can lead to charges filed by the NLRB, even if no union is present at your workplace. Even more disconcerting is the fact that other agencies, such as the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL), have taken notice of the NLRB’s newfound relevance in the workplace and are also revamping their own initiatives to seek out any possible unlawful practices – technical or otherwise.
At the 2012 American Bar Association’s Annual Labor and Employment Law Conference, the Acting General Counsel of the NLRB spoke on a panel discussing the special interest various federal and state agencies have taken in how social media is being used when it comes to workers' rights and employer responsibilities. He noted that the two types of social media cases the NLRB has seen are 1) discharge and discipline based on social media use and, 2) social media policies contained in employee handbooks.
Some interesting points about discipline and discharge cases, as discussed by the Acting General Counsel and other panelists at the conference, include:
The NLRB finds 2/3 of social media discharge cases without merit, which is the same rate as other types of cases.
Concerted activity can occur before, during or after the conversation (i.e., the Facebook post).
There is an Administrative Law Judge decision which found that a "Like" by an employee of a co-worker's Facebook post about conditions of employment was enough to demonstrate concerted activity.
The NLRB has not had any unlawful surveillance of social media cases where a supervisor monitors an employee's Facebook or Twitter accounts. The discharge and discipline cases have all started when a "Friend" of the employee gives the Facebook exchange to the company.
On April 22, Governor Beebe signed into law an act that will likely affect employers' social media and employee policies across the state. Act 1480 prohibits an employer from requiring or requesting current or prospective employees to disclose their social media account usernames or passwords. This law mirrors others being passed this year in state legislatures across the country. Several aspects of the new law will force employers to revisit their policies on the issue of employee-created social media accounts to make certain the policies are in compliance.
First, Act 1480 defines personal social media accounts as any electronic medium "where users may create, share, or view user-generated content." This includes common social networking sites like Facebook, Twitter and LinkedIn, but also includes personal blogs or websites.
Second, Act 1480 not only prohibits an employer from requesting account information, but it also prohibits an employer from requiring, requesting or suggesting that an employee or prospective employee "friend" (connect with) a supervisor, or even another employee. In other words, an employer cannot suggest that any employees add a supervisor or co-worker to their list of associated social network contacts.
Finally, there are some key exceptions to the general prohibitions. The prohibition does not apply to company email accounts or to social media accounts an employer creates for business use. It also allows for employers to request an employee's username and password when it is "reasonably believed to be relevant to a formal investigation or related proceeding" of possible violations of federal and state laws, or of the employer's written policies.
Additionally, there continue to be legal disputes involving ownership of corporate social media accounts. Although many companies have social media policies, they often do not contain a discussion of ownership of business-related social media accounts, which can become an issue when employees leave. Take the case of PhoneDog Media and former employee Noah Kravitz. Kravitz began work for mobile device review website PhoneDog in 2006, and began using a company Twitter account to keep followers up-to-date on industry trends. When Kravitz left PhoneDog in 2010, he took “his” Twitter account, and the 17,000 followers he had amassed, with him. PhoneDog filed a lawsuit against Kravitz in federal court, alleging that those followers are, in effect, a customer list and PhoneDog's property. The company asked Kravitz to pay $340,000: $2.50 per follower per month for 18 months. However, PhoneDog ultimately agreed in a settlement in December 2012 to provide Kravitz with custody of the corporate Twitter account, highlighting the need for companies to craft corporate policies as well as discuss ownership when an account is first created. Such policies should include the terms governing the account and access to passwords on corporate social media accounts. A carefully crafted policy could have saved PhoneDog two-year’s worth of legal fees and valuable time.
The simple fact is that existing laws don’t take into account the ever-evolving integration of social media in the workplace, much less the combination of social media and mobile devices. Devices like iPhones, iPads, Androids and countless others have changed the way many companies do business. Specifically, companies by the thousands are now encouraging employees to “bring your own device” to work. The BYOD movement – as it is popularly known – has allowed employees to bring in their own personal devices for work-related use, and has provided businesses with many advantages. Employers can quickly take advantage of newer technologies, reduce costs, and promote employee engagement and collaboration. However, a company’s shift from company-provided to employee-owned consumer technology can have far-reaching legal implications involving various areas of employment law, including wage & hour, collective bargaining agreements, and privacy and security concerns – many of which a company might not realize until it’s too late.
What Should We Do Now?
In light of rapidly developing case law on social media policies and the shifting nature of technology itself, you and your team should take any opportunity to review your company’s handbooks, policies and procedures. You may be surprised by some of the outdated provisions you have in place and, even if you never follow them, you could already be in violation of federal law as defined by the NLRB and other agencies. So, the question is: how do you develop and maintain a sound social media policy?
First and foremost, social media policies should be drafted to carefully insure against discrimination and harassment. Make clear that inappropriate, harassing, offensive, defamatory or discriminatory content in any electronic communication, whether personal or business-related, should be prohibited, provided that those statements or acts are outside of Section 7 protection. You may also consider prohibiting specific actions, such as sending, storing or accessing offensive materials. If your policy lists examples of such offensive materials, make sure that it is clear that the policy is not limited to just those listed examples. Next, make sure that the policy addresses the issues that are relevant to your business operations, such as privacy rights, property rights, marketing and other critical areas. Establish regular reviews of written policies to ensure compliance with regulatory changes made by the NLRB, EEOC and DOL, among other government agencies. One regulatory decision can render your entire policy out-of-date or, even worse, unlawful. Finally, distribute, explain and obtain employee signatures acknowledging receipt and understanding of your company’s social media policies.
Keep this in mind, too: when the NLRB Acting General Counsel was asked directly why certain social media policies pass muster while so many other companies' do not, he stated that lawful policies:
identify the legitimate business interests of the company, protect those interests and don't go further;
acknowledge there could be legitimate criticism of working conditions;
have a very fact-based non-disparagement policy which does NOT prohibit disparaging supervisors; and
do not have a savings clause (a statement saying nothing herein limits your rights under Section 7 of the NLRA). The NLRB's view is that a savings clause at the end of the policy will NOT correct an over-broad policy and should not be necessary if you write your policy correctly.
While no amount of language can ever guarantee that a social media policy will appease the NLRB, adhering to some basic guidelines should put your company in a positive position to defend itself in the event that your policy or procedures are called into question. In the ever-changing realm of social media, it is critical that employers and HR professionals stay ahead of the curve and avoid becoming a test case in legal battles that have yet to be fought.