Ms. Pohlid

Social Media & PR

Employee Use & Abuse of Social Media

By Kathleen Pohlid, Counsel, DHPM, PC

Best hotel in the city – most luxurious accommodations & great service!

My hotel is making me work long hours and my boss is full of crap!

If a member of your hotel staff made the first posting to a social media site lauding your hotel establishment to the public could this pose a concern for management?

Or, with respect to the second posting to a social media site, will management run afoul of any laws for disciplining or terminating the employee for making disparaging remarks against their employer?

These examples typify some of the unique and emerging issues facing employers with respect to social media and the workplace. With social media sites such as Facebook reaching more than 800 active users, more than 350 million of them accessing their accounts using mobile devices, employees have greater means than ever to communicate matters relating to their employment to the public. This poses several legal concerns to employers.

NLRA & Social Media

Most hotel establishments which are in at-will employment states have understood that in general they may legally discipline or terminate non-union employees with whom they do not have an agreed term of employment, for any reason, or no reason, or even a bad reason, provided that it does not violate a legally recognized public policy or law. Under this concept, may an employer legally terminate an employee for making a social media posting that is critical of their place of employment?

Recently, the National Labor Relations Board, a federal agency charged with enforcing the National Labor Relations Act, 29 U.S.C. §§ 151 – 169, has begun actively pursuing instances involving employee use of social media which address this issue. The NLRB seeks to prevent unfair labor practices by unions and private sector employers, including non-union employers. According to the NLRB, employees right to engage in concerted activity under the NLRA is protected even when making social media posts.

Prior to 2011, the general consensus among many employers in at-will employment states would likely concur with the proposition that they may lawfully terminate an employee who posts disparaging comments about them on social networking sites. However, that was before the NLRB began actively pursuing and litigating instances where employees were terminated for making postings critical of their employers in social media in violation of the NLRA.

In 2011, the NLRB issued a complaint against an employer for firing an employee who complained about her supervisor on Facebook. The NLRB investigation found the employer’s blogging and internet posting policy to be overly broad and that its termination violated an employee's right to engage in concerted activities. Although the case settled, the NLRB’s concern fueled several other investigations into instances where employers took adverse action employees who made social media postings that were unfavorable to their employer. The NLRB’s investigations included both union and non-union employees.

Last year, following fourteen NLRB investigations of employers who took adverse action against employees for comments posted on social media sites, the NLRB issued a memorandum detailing its findings from those investigations. In those cases where employees were found to have made postings “with or on the authority of other employees, and not solely by and on behalf of the employee himself,” the NLRB determined that the employee’s posting were concerted activity, protected by the NLRA. In cases where employees made postings to social media in order to solicit the assistance of other co-workers, the NLRB found that the activity was “concerted” and then examined whether the communications were protected.

In general, the NLRB considers postings which are directly related to working conditions to be protected, even if those postings include swearing and/or sarcasm against the employer. Factors cutting against existence of a protected communication may include the extent to which such communications interrupt the work or operations of the employer or pose a verbal or physical threat.

Additionally, the NLRB memo addressed employer policies which prohibit employees from posting pictures of themselves in any media and depicting their employer’s company in any way. The NLRB finds that those policy restrictions violate Section 8(a)(1) of the NLRA “because it would prohibit an employee from engaging in protected activity; for example, an employee could not post a picture of employees carrying a picket sign depicting the company’s name, or wear a t-shirt portraying the company’s logo in connection with a protect involving terms and conditions of employment.” Likewise, the NLRB deems unlawful policies which prohibit employees from making disparaging comments about their employer.

FTC Deceptive Trade Practices

Well, what about the loyal and enthusiastic employee who makes only favorable postings about their employer on websites and social media accounts? This too, may pose a problem and concern to employers. The FTC Deceptive Trade Practices, 16 C.F.R. Part 255, prohibits persons who are affiliated with a company, product or service, from making endorsements without disclosing their affiliation. Therefore, employees who post favorable comments about their employer on social media sites without disclosing their affiliation with their employer this may violate the FTC rules. The FTC rules illustrate the importance of employers having social media policies.

Social Medial & Hiring

Social media may also present benefits and pitfalls in the hiring process. Employer review of a prospective employee’s social media site may detect discriminatory and offensive conduct that does not conform to their code of conduct and workplace policies. It can also offer insights into the prospective employee’s background, qualifications, communication skills, personality and truthfulness. In some cases, a review of social media site may reveal that the employee is a perfect fit for the job. However, be aware that information posted in social media may be inaccurate, untrue, and may subject and employer to potential claims of discrimination.

Employers who permit hiring personnel to review prospective employee social media sites may obtain information such as their race, ethnicity, age, religion and other information that places those employees in a protected class. If an applicant who was not hired has a basis to allege that it was because the employer examined a social media site and chose not to hire them after discovering such information, they may have a claim for discrimination.

Employers can protect against such incidents by having an anti-discrimination policy, ensuring their hiring staff and those who make hiring decisions are trained in the policy, and either limiting or sequestering from the decision making policy those persons who screen the social media sites.

Guidelines for Developing a Social Media Policy

Employers should protect against the pitfalls of social media by developing a social media policy, ensuring employees are trained and understand the policy, and ensuring it is enforced. In developing the policy, employers should assess the risk/benefits of social media. In some cases, employers may decide to block access on their computer network to social media sites and develop policies to prohibit employee access while at work.

Other employers may find that responsible use of social media is beneficial. For them, the key is to develop policies that protect against misuse, while enabling employees to promote their expertise, facilitate networking, and provide the edge on new developments and information. An effective policy should set forth guidelines for permissible and prohibited use. In order to protect against NLRA violation concerns, the employer should specify that its prohibitions do not prevent or apply to concerted protected activity under the NLRA.

The social media policy should also address privacy, discrimination and harassment concerns that may arise with the use of social media. Ensure employees are aware of their obligations to maintain privacy and confidential information and to comply with equal employment opportunity and non-discrimination policies continue to apply when using social media.

Laws protecting privacy and unauthorized access to computer systems extend to personal private social networking and email systems. Employers who desire to monitor communications on their business systems must ensure employees are notified that they do not have any expectation of privacy and that their communications via employer equipment are being monitored, even when remotely accessed by password and if subsequently deleted by the employee.

Since information an employee communicates via social media may affect an employer’s business, the policy should set forth rules regarding permissible use of logos, information concerning the business, employees and clients, and prohibitions on communication of confidential and proprietary information and disparagement of competitors, employees and clients.

State and federal laws may be implicated by social media policies and restrictions in the workplace. Therefore, these guidelines are not a substitute for consulting with counsel to ensure the policies are compliant and that the business is protected from liability.

Social media provides many benefits for businesses, but also poses challenges. Employers must develop an effective social media policy to enable it to capitalize on the advantages and guard against potential risks.

Kathleen Pohlid is an attorney with the law firm of DHPM, PC in Nashville, Tennessee. She practices in the areas of employment, litigation, governmental compliance, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and health law issues including Medicare audits. Ms. Pohlid has over 20 years of combined federal government and private sector experience in employment law and litigation. She both writes and speaks professionally on employment law and regulatory compliance matters. Ms. Pohlid can be contacted at 615-425-3702 or kpohlid@dsattorneys.com Extended Bio...

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