The Slippery Slope of Social
Establishing guidelines to protect company reputations while upholding employees' rights to talk about their jobs and conditions has become a top employer concern in today's online world.
By Maura C. Ciccarelli
When it comes to employee policies covering social media, the online environment has become a tricky space where employers need to tread very, very carefully . . . and even then, they might not get it right.
To learn how companies can improve how they craft their employee social-media policies to tackle this thorny subject, Human Resource Executive® turned to some of the top employment-law minds from this year's Most Powerful Employment Attorneys list (which includes top 100 attorneys, specialists in specific areas, up-and-comers and this year's inductees to the Most Powerful Employment Attorneys Hall of Fame) for an examination of, and advice on, the highly nuanced social-media-policy landscape.
No surprise that, almost to an attorney, they agreed that the current National Labor Relations Board has been mightily proactive in supporting employees' rights to discuss wages, hours and working conditions publicly beyond the workplace, extending this right to employees who are not unionizing.
"The composition of the NLRB as appointed by President Obama has a much more pro-employee, pro-union approach. The board has taken the position that it wants to encourage employees to consider unions as an alternative," says Joseph Costello, a partner with Morgan, Lewis & Bockius in Philadelphia.
In addition, social media's popularity as a broad-based communication tool has exploded and employers are struggling to catch up with how to protect their own interests while not violating employee rights related to the National Labor Relations Act, free speech or privacy.
The most recent ruling on social media and employee policies came in December 2015, when the Second Circuit Court of Appeals upheld an NLRB decision that an employer, Triple Play Sports Bar, had wrongfully fired two employees. In the now-well-publicized case, one worker had complained on Facebook that her employer had not withheld enough taxes from her pay. Another employee "liked" it, and the company fired both workers for violating its social-media policy.
The court agreed with the NLRB that the firings violated Section 7 of the NLRA -- which considers employee complaints about wages, hours or workplace conditions "protected-concerted activities" -- and that the policies were so broad as to prohibit the employee's rights to communicate with each other about their employer. Originally established to protect unions, the NLRA's protections now extend to all employees, but not managers or those at higher levels.
The problem, says Costello, is that the NLRB's expanded social-media decisions are making it difficult for employers to institute "civility" policies that promote workplace cooperation and prohibit harassing behavior while protecting employees' rights to discuss the employer's policies and practices.
The board has been favoring protecting concerted activity over these legitimate employer interests, says Costello, adding that "the board has overturned disciplinary actions in some [cases] where an employee's posts are clearly inappropriate in terms of [their comments] about co-workers."
In one case, an employee tweeted that his supervisor was a "scumbag" and the employer took disciplinary action -- which the board overturned. "The employer [also] should be able to take disciplinary action if an employee is posting or tweeting things that undermined the employer's reputation with [its] customers. But the board is very restrictive about what it allows employers to get away with in that regard," Costello says.
Dennis Duffy, partner in the Houston office of BakerHostetler and another attorney listed, agrees that the NLRB majority is extending settled principles about protected-concerted activity.
"Obviously, as we are representing employers, we feel very differently," he says. "The dilemma for the employer is that you almost have to pick your poison. Some of that [protected] speech may violate other provisions of the law, such as harassment on the basis of race, gender, etc. Harassment law would suggest that you have zero tolerance for harassing behavior . . . that you don't wait until it rises to the level of extreme and outrageous; you've got to go after it. On the other hand, the board is taking a postmortem of your actions in the name of anti-harassment activities and will second-guess [them] to a fare-thee-well."
In the absence of protected-concerted activity, employers have the right to set policies and take disciplinary action if employees' social-media posts qualify as harassment of other employees on the basis of race, gender or other protected characteristics; disclose confidential, proprietary employer information such as trade secrets; or undermine the reputation of the employer in the eyes of customers.
In addition, employee use of company trademarks, logos and other copyrighted information may be allowed under fair-use standards when employees are engaging in Section 7 communications related to wages, hours and working conditions, but policies may prohibit commercial or non-fair use of such copyrighted materials on social media.
"The employers I counsel have no interest in serving as sensors for their employees' posts and tweets but those employers do have a legitimate interest in ensuring that their employees don't use social media for inappropriate reasons," Costello says. "Employers should be able to intervene."
Duffy says that the social-media aspect of employee guidelines is "something of a distractor," with employers focusing on the technology and its wide reach, instead of focusing on the time, place, manner and content of the employee speech.
"Let's assume that Facebook did not exist and [an employee] communicated the same content [as in the Triple Play case] in the employee break room," says Duffy. "Frank says, 'Hey, the employer is not paying us worth a darn' and the other employee says, 'Amen to that.' Well, no one would have any trouble saying that that is protected-concerted activity. The question the board has to have answered is, Does 'like' connote that same concept?"
He does believe the board has gone "a bit too far to the extent to which offensive or profane speech, or physically threatening speech, can nevertheless be protected" when it involves protected-concerted activity. It's also important, says Duffy, to take action early on verified harassment actions instead of waiting for the last straw that breaks the proverbial camel's back. In cases in which coarse talk was tolerated before, employers can't draw the line when the worker is involved in a labor dispute; it's better to take action earlier than have that action thrown out later if protected-concerted activity is involved. In those cases, he advises companies to require managers to contact HR to get a higher-level, less emotionally reactive review of the situation.
No Fishing Expeditions
One of the benefits of social media to employers has been its role in employment-law disputes, says Patrick W. Shea, a partner in the employment law department of New York-based Paul Hastings. "Social media can be a treasure trove that will help you disprove a plaintiff's [workers' comp] claim, when you see [a posted picture of] someone who is disabled doing the limbo at a party," he says.
While the NLRB does permit requests for access to an employee's private social-media account "for a good reason," it does not allow a general "fishing expedition," says Shea.
Al Latham, a partner at Paul Hastings, says it's beneficial to review the NLRB's General Counsel Memorandum GC 15-04, which lays out the principles and nuances presented in the NRLB's protected-concerted-activities decisions in recent years. "[Employers] can compare what the board and the general counsel think is OK and what they think is not OK," Latham says. "Sometimes, the distinctions are so tiny that the client can reword [its policy] to follow the general counsel's guidance to use [approved] language."
A good reason to seek out legal counsel when crafting social-media policies is to navigate the competing laws across the 50 states. For example, some state constitutions prohibit employers from intruding into their employees' lives outside of work. Others, such as California, Colorado and New York, prohibit employers from taking any job-related action for what employees do, lawfully, during their off-duty hours, Duffy says.
Nancy Flynn, founder and executive director of the ePolicy Institute in Columbus, Ohio, recommends that employers periodically review the National Conference of State Legislators (ncsl.org) website to find out which states permit an employer to request an employee's social-media login and password for legitimate business purposes. "If your state allows this and your company intends to be monitoring employees' personal social-media activity, make it clear in your social-media policy," she says, adding that this point should be mentioned in mobile phone policies too.
Flynn also notes that it's important to weigh how and whether such monitoring fits in with a company's culture and mission -- in short, how a company wants to treat its employees. Finally, she warns that companies that monitor social-media activity need to include those digital records in their records-retention strategies, as they can quickly become overwhelming with a lot of storage space needed.
"Unring" the Bell
Duffy says companies that want to monitor social media as it pertains to harassment, their reputation or confidential company information need to make sure they treat all similar cases alike. He advises against adopting a policy to review the online social-media life of employees without a clear plan for why this is a legitimate business objective.
"If you don't ask questions before you start, you'll have no limits or it will just be arbitrary and capricious," he says.
There may be certain security-sensitive positions or public-facing positions in which it matters what the employee says online, but that is a fairly narrow band, Duffy says.
"If I have a large . . . workforce [and] I decide I'm going to go on social media, I have to be prepared to say that I'm going to consistently do it for virtually everyone unless I can make some reasonable distinctions between who am I looking at and why that distinction is justified in the law," he says.
The other problem with monitoring social media lies in its content ... and what too-curious employers may learn about their workers, even if it is irrelevant to their jobs. Duffy half-jokingly points to the Showtime television series Billions, in which one of the main characters, a lawyer, engages in sadomasochistic games with his wife outside of his work life.
"That's not something that's terribly relevant to what [he does in his day job]," he says. "But, once you know that, it's kind of hard to get it out of your head. It's hard to 'unring' the bell."
As a result, Duffy says, it is more prudent to never "over-collect" background information, especially since it's so easy to do with social media.
Social media has also become a slippery slope when it comes to hiring, says Shea. He advises that companies carefully consider whether it's wise, in the initial stages of a search, to scan a job candidate's public social-media posts.
"You will find information that cannot be shared with the hiring manager because it overlaps with protected categories. You may find out about a disability, for example, and it will immediately taint the search," Shea says.
However, if the job requirements include understanding a candidate's social-media presence, the findings should be filtered to remove protected information so an unbiased but helpful report can be given to the hiring manager, he adds.
The good news, Duffy says, is that the current NLRB is "very big" on trying to communicate its positions on issues and in clarifying what is considered protected-concerted activity.
"It's a good idea to pay a lot of attention to the guidance NLRB gives on its websites," he adds.