New Cases Limit Ability to Police Employee Use of Social Media
Companies are increasingly implementing social media policies to try to reduce liability for items posted by their employees on blogs, Facebook, Twitter, websites and other social media.
The risks prompting these policies: civil liability for harassing or discriminatory statements and disclosures, violations of confidentiality or intellectual property rights, or potential sanctions by the Federal Trade Commission for false advertising.
Corporate social media policies run the gamut -- from encouraging use of social media to expressly forbidding it during working hours. Until recently, companies and employment lawyers have generally agreed that any policy should prohibit using social media to make disparaging or potentially damaging statements about the company, its customers, vendors or business partners.
While this may sound like a reasonable limitation on employee use of social media, it's becoming clear that implementation of a social media policy may unwittingly expose an employer to a new set of liabilities, thanks to a series of complaints filed by the National Labor Relations Board (NLRB) in 2010 and early 2011.
Rules too stringent
In late 2010, the NLRB filed a complaint alleging that an ambulance service employee was unlawfully discharged under Section 7 of the National Labor Relations Act (NLRA) for Facebook postings that were highly critical of her supervisor. Specifically, the employee called her supervisor a "17" -- the company's term for a psychiatric patient -- as well as a "scumbag" and worse.
In response to the employee's conduct, the employer, American Medical Response of Connecticut Inc., discharged the employee pursuant to its Blogging and Internet Posting Policy, which stated: "Employees are prohibited from making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors."
To most employers, this would seem like legitimate grounds for termination. Not so, contends the NLRB. Specifically, the board asserted that the policy under which the employee was terminated was too broad and the termination improper Under the NLRA, which allows employees to discuss the terms and conditions of their employment with co-workers and others. Similar rules protecting employee rights to discuss wage and work conditions exist under the laws of a number of states.
In this case, the employer agreed to revise its policies to ensure they do not restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. In a true sign of the times, the NLRB actually "tweeted" about the settlement on Twitter at https://twitter.com/nlrb#.
While some legal experts were quick to comment that the NLRB's position was limited to protection of union employees, the NLRB's Director of Public Affairs Nancy Cleeland made clear that the case had broader implications. Taking advantage of social media herself, Cleeland wrote an e-mail to one blogger who had covered the case and resulting settlement: "Thanks for your post on the Facebook settlement, which someone just forwarded to me. I just wanted to point out that even though the employee was represented by a union, our concerns related to the company's social media policies and her postings were not union-related and would apply to any private-sector workplace that is under the NLRB's jurisdiction."
On March 9, 2011, another company, Sodexo, agreed to settle a case before the NLRB concerning its media policy for workers. The media policy in question directed employees as follows: "Do not make statements or comments to the media. If you are asked by the media to speak or comment on any subject, contact your manager or Corporate Communications immediately."
The Service Employees International Union (SEIU) filed an unfair labor practice charge with the NLRB, again on the theory that the policy had the effect of preventing workers from exercising their right to speak about working conditions. The Sodexo settlement, which also took place without a hearing, required the employer to revise its policy, outlining employees' legal rights and limiting restrictions on workers' speech to instances when they are speaking "on behalf of the company."
Because the American Medical Response and Sodexo cases were settled without hearings, social media experts and aficionados are eagerly waiting to see if a third case, Student Transportation of America, Case No. 34-CA-12906, will lead to an official decision that will further guide employers as to what extent they can limit employee communications via social media. In this latest case, the union alleges the employer, a bus company, violated Section 8(a)(1) of the NLRA merely by "maintaining" policies in its employee handbook that barred employees from making "disparaging" or "derogatory" statements in electronic communications.
Advice for both sides
In light of these cases, employers and employees may wonder where the limits are. Certainly, employers should avoid overly broad language that bars employees from making any negative or disparaging comments about the workplace. However, employers are still well-advised to have a social media policy in place and make it clear that their application of social media policies will be consistent with the NLRA and other applicable local, state and federal laws.
Employers can and should continue to discourage employees from making harassing, discriminatory or defamatory comments. Likewise, an employee's right to make statements about working conditions does not give the employee license to reveal company or third-party trade secrets and other confidential and proprietary information.
As the laws concerning the convergence of employment law and social media continue to rapidly evolve, employers should use caution before implementing social media policies and before taking adverse action against employees for violation of any such policy. Employers would be wise to review their policies annually to make sure they are still in compliance with any decisions that have come down or laws that have been implemented in the last year.
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Wendy Lane is a partner in the Labor & Employment department at Rutter Hobbs & Davidoff in Los Angeles, and provides employment counseling to companies of all sizes. In addition to drafting employment handbooks and policies, Wendy represents business in all varieties of employment and business disputes, including wrongful termination, discrimination, harassment, wage and hour, and trade secret misappropriation cases and government claims. Wendy is a frequent author and speaker on the topics of social media and employment law. Feel free to contact Wendy at firstname.lastname@example.org.