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Social Media Poses a Legal Minefield for Employers

SocialMediaLegalityDPartThe missive on Facebook reads like a typical workplace rant.
“It’s pretty obvious that my manager is as immature as a person can be, and she proved that this evening even more so. I am unbelievably stressed out, and I can’t believe NO ONE is doing anything about it! The way she treats us is NOT okay, but no one cares, because every time we try to solve conflicts, NOTHING GETS DONE!”
The poster worked in a San Francisco clothing store, and this message, and comments like it from fellow employees, led to numerous firings once the employer found out about them. But one of the booted employees filed an unfair-labor-practice charge with the National Labor Relations Board (NLRB) — which sided with the workers.
Why? Well, the store was located in a rough neighborhood of the city, and stayed open an hour later than other stores in the vicinity. The employees had complained to their manager about being harassed by “street people” upon leaving late at night. When the manager refused to change the store hours, the workers took to social media.

John Gannon

John Gannon says the National Labor Relations Board has recently taken a keener interest in making sure companies’ social-media policies aren’t too vague to be enforced.

“They went online and complained about their supervisor,” said attorney John Gannon, an associate with Skoler, Abbott & Presser in Springfield. “The NLRB said they were complaining about working conditions and were concerned about safety, and as a group, they were trying to get their supervisor or store manager to close that store earlier.”
And that, the board maintains, falls under the umbrella of ‘protected, concerted activity’ which employees are allowed by law to undertake. The fact that the complaints were posted very publicly and could have embarrassed the employer did not limit their rights.
“One issue that arises with respect to social media is, can we fire somebody for comments they have made online that may not be favorable to us, or that we perceive as disparaging?” said attorney Amy Royal, owner of Royal LLP in Northampton. “Before they take such adverse action, companies need to take a careful look at whether the comments are expressing an individual gripe or if the employee is trying to induce other employees to undertake group action that could potentially be seen as concerted activity.”
The difference is crucial, and gets to the heart of what employers need to know about their workers’ private use of social media.
“If it’s collective, and more than one employee is complaining online, is the complaint about the terms and conditions of employment?” Royal asked. “For employers, the frustrating piece is that the NLRB has a broad view of what constitutes terms and conditions of employment.
“If I read, ‘it’s pretty obvious that my manager is as immature as a person can be,’ human nature being what it is, if I’m the manager, I’m not going to happy with that, and I might want to take action because I feel slighted or slandered. But in this case, other employees joined in and made comments, and the NLRB said this is protected.”
That’s different, she said, than someone lashing out randomly at their employer with no such context, and no support from fellow workers.
“The number-one issue when talking about social media in the employment-law context is whether or not an employee’s activity, whether on Facebook or elsewhere, is protected by the National Labor Relations Act,” said Gannon, adding that the NLRB periodically issues ‘advice memorandums,’ examining about a dozen recent cases and discussing whether the employers’ conduct violated the act, or whether their policy on social media is too broad to be enforced.
“Through all those advice memorandums, they distinguish between someone’s individual gripes and somebody complaining about workplace conditions,” he said. “That’s the bright line — and it’s actually more of a gray line. Is somebody actually talking about improving workplace conditions, or is the employee just complaining about his supervisor? In a recent case, an employee said, ‘hey, my supervisor needs to back the f— off. If he wants to fire me, go ahead, make my day.’ The board said that’s your classic individual gripe; they weren’t talking about other employees or referencing any working conditions.”
Kate O’Brien, an attorney with Springfield-based Sullivan, Hayes & Quinn, noted that the NLRB has been busy assessing cases decided by administrative-law judges. “For the most part,” she said, “they’ve affirmed the approach of evaluating them for the potential chilling of employees’ right to engage in protected, concerted activity.”

Group Think

Amy Royal

Amy Royal says screening job applicants on social media can be helpful — but poses certain legal risks.

None of this, however, applies to employee use of social media on work time. Companies have long been well within their rights to police what their staffers do while on the clock, and routinely bar the recreational use of the Internet during work hours.
“Companies can and should have a policy that prohibits employees from using social media at work, and it should also extend to the use of their own devices,” Royal said. “In the real world, it becomes difficult for companies to police that, or they may not want to have a total prohibition, but they need to know that, if they allow some level of use of social media, employees can use it for union-organizing purposes.”
But when it comes to off-the-clock activity, she said, many employers — especially those with non-unionized workforces — still aren’t aware of workers’ rights when it comes to freedom of expression, laid out in Section 7 of the National Labor Relations Act.
“Section 7 applies to both union and non-union workforces and gives employees the right to come together and complain about the terms and conditions of their workplace,” Royal noted. “That particular section is implicated when we’re talking about social-media issues in the workplace.”
However, Gannon noted, although the NLRB remains engaged in complaints about unjust firing, it has also taken proactive steps to examine various companies’ social-media policies and determine which ones too broad to withstand scrutiny.
“They’ve reviewed a lot of policies dating back to 2010 and 2011 that prohibit certain kinds of behavior — prohibitions against inappropriate comments or unprofessional comments or misleading comments on Facebook — and they’ve come out and said that’s overly broad and not specific enough, that it could chill somebody’s Section 7 rights, so they’d be afraid to speak out.”
One recent case involved Giant Foods, which had a policy prohibiting employees from discussing confidential, non-public information on social media.
In an advice memorandum issued in July, “the board came out and said that’s overbroad, that they need to be more specific,” Gannon explained. “A lot of people were surprised by that; they think an employer has a right to protect its confidential information. But the board’s point was that, yes, you need to protect your confidential information, but make sure employees understand what that confidential information is.”
In another case — an actual decision, not just a memorandum — the board determined that Costco’s policy, barring employees from posting things that might damage the company’s reputation, was also overbroad.
In yet another case, Royal noted, an employer’s policy said workers must be courteous, polite, and friendly to customers and fellow employees, and not use language that injures the image or reputation of the company. “That sounds like a policy any company would want to implement, but the NLRB said that policy is problematic because it’s too vague,” she said. “They want specifics in these policies.”
So how should employers craft a policy that stands up to the law? “One thing I recommend is to link it to other policies,” Gannon said. “For example, I’ll recommend that the employer, in their social-media policy, reference the anti-harassment policy and make it clear that employees have to follow the anti-harassment policy in social media, and can’t post things that are harassing in nature.”
The same applies to confidentiality policies, he added. “You have to treat it as if it happened in the workplace.”

Searching for Clues
Still, O’Brien said, while overbroad policies are certainly a consideration, “I think a more prevalent consideration is the discipline or termination of employees for their comments and activity in social media.”
And it’s not just current workers employers must be concerned with. Job applicants pose their own kind of minefield. Specifically, employers who use sites like Facebook to gauge an applicant’s character often discover information about his or her beliefs or race or sexual preference — issues that shouldn’t be used in hiring decisions, but sometimes are.
“It’s a double-edged sword,” Royal said. “You want to investigate an unknown commodity before you invest in them. We know that bringing someone into a workplace is a huge investment, and social media is a great way to find out information about a person’s character, their reputation, their likes, and their interests. But on the flip side, you may be given information that you wouldn’t otherwise have in the application process, that could then be used as ammunition against you.”
Importantly, even if a decision not to hire is based solely on job qualifications and experience, simply knowing certain things about an applicant can open an employer up to the perception of discrimination — and lawsuits can follow.
“That’s not to say you shouldn’t use social media as part of background check into an applicant — I think you should — but you need to know the parameters,” she said. “And if you use social media inconsistently, you open yourself up to attack as well. If you’re going to use it, then use it for all applicants when they reach a certain point in the application process.”
Gannon said much of the strategy depends on what sites employers are checking.
“Generally speaking, I think there’s a lot of information out there that would be valuable to employers in their recruiting efforts. LinkedIn is a very good place employers can use to double check what their employees say in an interview; you can find out if there’s some conflict there.”
However, he added, “some other sites present problems stemming from learning too much information. Even visiting someone’s Facebook page and learning information that isn’t part of an application — information about an applicant’s religion, disability, genetic information — all of that can lead to an unlawful-hiring lawsuit, claiming the information learned through social media was the reason the individual wasn’t hired.”
Gannon agreed that hiring managers need to be consistent about what searches they perform, and then document those efforts.
“But the most important thing an employer can do is have a gatekeeper perform the search, an individual who is not connected to the hiring decision itself,” he said. “If they find any negative characteristics, they report back to the hiring manager.”
That way, he continued, “if someone brings a failure-to-hire lawsuit, you can defend the hiring — management didn’t know you were Muslim, for instance. That’s really the key in recruitment.”

Media Messages
Royal stressed the importance of keeping tabs on the NLRB’s evolving thought process on social media as it relates to Section 7 of the National Labor Relations Act and other factors.
“A lot of employers do have social-media policies, and now that we’re coming up on a new year, it’s a good time to revisit those policies to make sure they’re still compliant with NLRB decisions that have come in over the past year,” she said.
For example, “a semi-pro-employee decision came out of the NLRB that basically said that, if an employee is publicly critical in a way that the comments are maliciously untrue, then you can fire them — but employers need to be able to demonstrate that the comments were made with knowledge of their falsity or with a reckless disregard for their truth. That’s a high threshold to meet under those circumstances.
“Because this area is still emerging,” she added, “employees need to connect with their counsel to sort through these issues before they take action. You can’t unring that bell.”
Another potential shift in current thought involves the ‘like’ button on Facebook — specifically, whether simply liking a comment on Facebook is enough to be considered concerted activity, Gannon noted. “That’s something the NLRB is currently looking at. It’s kind of an interesting issue.”
O’Brien agreed that the picture is far from settled. “The board has provided a little more guidance on what’s acceptable or not acceptable. But it’s still constantly evolving, and an area employers need to stay on top of.”
Part of the reason social media has become such a scrutinized issue is the sheer volume of personal information being revealed on public websites.
“It’s a different world, but an interesting world, and employers really have to rely on outside counsel to keep them up to speed on what’s changing,” Gannon said.
“A policy that was OK in 2010 might not pass muster in 2013 based on advice memorandums that have come out from the board,” he continued. “Those policies might need to be revised. Employers need to be aware that this is an area of the law that’s constantly in flux. I’d be reviewing those policies in some way, shape, or form at least on an annual basis.”

Joseph Bednar can be reached at [email protected]

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