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Drawing the Line on Social Media

Employees use social media on a daily basis -- and in ever-exceedingly creative ways. However, creative social media use may not always comply with the employer's view of acceptable employee behavior and may necessitate their termination, but HR must consider myriad laws before taking enforceable action.

Monday, January 13, 2014
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Employees use social media on a daily basis and ever-exceedingly creative ways. One of the most recent examples of this creativity is an employee who resigned by submitting to her employer through YouTube an interpretive dance video to Kanye West's "Gone." However, if the employee is still employed -- not resigning, like the YouTube dancer -- this creative social media use may not always comply with the employer's view of acceptable employee behavior.

When confronted with such a situation, HR leaders have myriad laws to consider before they should take action based on an employee's social-media use. Otherwise, the employer may find itself the subject of the next viral social media post about an employer penalized or required to rehire an employee back after the employer took disciplinary action against the employee related to the employee's social media use.

Consider the following hypothetical situation:

An employer receives a report from a coworker that an employee on intermittent Family and Medical Leave Act leave for plantar fasciitis posted pictures of the employee rock climbing on a day that the employee called in and reported that the employee could not walk. Along with the rock climbing photo, the employee posts a comment that, with the employer's current unfair promotion structure, rock climbing is the only way that the employee will ever get to the top. The coworker -- who covered the employee's cashier shift on very short notice -- is so angry with the employee that the coworker unfriends the employee on Facebook, preventing the coworker from again viewing (and printing for the employer) the rock climbing picture.There are no other co-workers who are Facebook friends with this employee.

 

This is a common situation that many employers have faced: receiving a report from a coworker of an employee's misuse of leave. While, in general, an employer is free to believe any source it chooses to believe, it is wise for an employer to analyze the source of the report to determine if that individual could have ulterior motives for making the report. For example, if the individual who made the report and the employee on leave are both up for the same promotion, the individual clearly has a motive to present an inaccurate report.

Similarly, if the individual who made the report has been caught in untruths in the past, how much stock can the employer place in this report? In such situations, it is advisable that the employer attempt to obtain independent verification of this photograph before determining what action to take, if any, concerning the employee on intermittent leave. Conducting due diligence concerning such a report before determining what disciplinary action, if any, should be taken against an employee on FMLA leave can help minimize the risk of liability concerning any FMLA retaliation claim later brought by the employee based on the disciplinary action.

Can the employer ask the employee to provide the employee's Facebook password so the employer can log onto the employee's Facebook account to determine if the rock climbing photo exists?

The answer to this question depends on in which state the employee lives or works. In 2012, California, Illinois, Maryland and Michigan all passed laws prohibiting employers from asking employees for social-media passwords. In 2013, Arkansas, Colorado, New Mexico, New Jersey, Nevada, Oregon, Utah and Washington also passed such laws, not to mention the more than 20 other state legislatures that considered such laws. In sum, an employer may be prohibited by law from asking for the Facebook password, and, even if the employee does not live or work in one of the 12 states where this practice is prohibited, this practice is socially disfavored and would most likely not be appreciated by a jury if a lawsuit was initiated based on any termination of this employee's employment. So, even if the practice is legal in the applicable state, if an employer decides to go forward with asking the employee for the employee's social media password, the employer could be placing itself in the oppressive, bad employer category in the eyes of any future jury.

Hypothetical situation continued:

The employer's human resources manager and a witness meet with the employee and advise the employee that the employer received a report that the employee was rock climbing on the day that the employee told the employer that the employee could not walk and that there is a picture confirming this activity. The Human Resources Manager then asks the employee to respond. The employee admits that the employee was rock climbing on the day that the employee reported to the employer that the employee could not walk.

 

Nothing prohibits an employer from continuing the investigation by simply meeting with the employee, and a factually accurate bluff -- like the one described above -- can go a long way towards obtaining an admission from an employee. Furthermore, it is usually a good idea to allow the employee to explain the employee's side of the story before the employer determines what disciplinary action, if any, the employer will take. Getting the full story before acting is what juries expect employers to do, and, if this step is not taken prior to disciplinary action being determined, a jury could view the employer as being unfair, again creating the risk of the employer being placed in the bad employer category in the eyes of any future jury.

The employer has now allowed the employee to tell the employee's side of the story, and the employee has admitted that the employee could clearly walk on the day that the employee reported to the employer the opposite. The regulations implementing the FMLA provide that an employee who fraudulently obtains FMLA leave is not protected by the FMLA's job protection provisions.

Can the employer terminate the employee's employment or take other disciplinary action based on this admission? Under the FMLA, yes, but, unfortunately, because the rock climbing picture was accompanied by a comment concerning the employer's promotion structure, it is possible that the employee could claim that the employee was terminated based on the promotion comment, not based on the employee's provision of untrue information related to FMLA leave. Thus, the employer should also consider the National Labor Relations Act and assess whether the employee's comment about the promotion structure is protected, concerted activity under the NLRA, which could create risk that the National Labor Relations Board would bring an action against the employer based on the employee's termination.

The NLRA applies to nearly all employers, whether or not any portion of the workforce is unionized. In general, the NLRA gives employees the right to take action with one or more coworkers to improve working conditions by, among other things, raising work-related complaints, and it prohibits employers from taking adverse action against employees who engage in these types of activities. In determining whether the employee's Facebook posting about the employer's promotion structure could be activity protected by the NLRA, the employer must analyze whether the employee made this comment on behalf of one or more other coworkers or if this was the employee speaking only on behalf of the employee. In other words, was this concerted or joint activity or just a complaint by a single employee?

In this case, there is no indication that the employee is speaking on behalf of anyone, other than the employee, or otherwise attempting to induce group action. For example, the comment does not state that "we believe that rock climbing is the only way that we will ever get to the top," and there is no indication that any other employee joined in or supported the comment in any way, such as by commenting on the post to the effect that "we should talk with management about a way to alter the promotion structure."  In fact, in this situation, the only other coworker who was Facebook friends with this employee and would have seen the comment was so angered by the post that the coworker unfriended the employee, an action that clearly does not show support for the employee's comment. Thus, solely based on the words used in the post and the fact that no other employees were involved in the post in any manner to show that the promotion structure comment voiced a shared viewpoint, the comment does not appear to be concerted activity that would be protected by the NLRA and could subject the employer to a successful action by the NLRB.

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However, employers should be aware that, if this employee had engaged in unionization activities in the past, it is possible that the NLRB could claim that the unfair promotion structure post was a continuation of prior concerted activity protected by the NLRA, as the NLRB did in a May 2013 case against a New York tour bus company, and still bring an action against the employer based on any termination of the employee. As always, an employer cannot assess risk in a vacuum and must consider everything that the employer knows about the particular employee and the employee's past activities.       

Finally, in addition to the NLRA, dependent on the state in which the employee lives or works, the employer should also consider potential risk under certain state laws before deciding what disciplinary action, if any, should be taken. Some states have off-duty conduct laws that prohibit employers from disciplining or terminating employees for conduct in which the employees engage off of work premises during non-working time.

Many of these laws focus on particular protected conduct, such as smoking. However, there are other laws that are written much more broadly and that could encompass an employee's use of social media or an employee engaging in rock climbing. For example, in New York, employers are prohibited from discharging an individual based on the individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property. California, Colorado and North Dakota have similar, broad off duty conduct laws. Thus, if the employee's employment is terminated, the employee could allege that the termination violates an off duty conduct law and that the employee was terminated for rock climbing or using social media, both of which are legal recreational or off-duty activities.

To help minimize the chances of such a claim being successful, employers must be familiar with the applicable off duty conduct laws, most of which contain exceptions. For example, the North Dakota off duty conduct law prohibits an employer from discharging an employee based on the employee's participation in off duty lawful activity "which is not in direct conflict with the essential business-related interests of the employer." 

Arguably, an employer has a business interest in having employees be honest concerning all matters with the employer, and an employer cannot continue to employ an individual who has admittedly been untruthful, especially if that employee -- such as the cashier employee at issue – has contact with the employer's money. In this situation, if the employee lived or worked in North Dakota, the employer should phrase its communications to the employee regarding the employee's termination in a manner that makes it clear that the employee's improper activity fell within the exception to the off duty conduct law.

The employer should advise the employee that the employee's provision of untrue information related to the employee's use of FMLA leave was in direct conflict with the employer's business interest of having employees who are truthful in all communications with the employer and emphasize the additional importance placed on this business interest when the employee has access to the employer's money. By carefully analyzing the potentially applicable laws and crafting disciplinary communication delivered to employees related to the employees' social media use, employers can, in the words of Kanye West, help ensure that terminated employees stay "gone."           

Karen Denney is a partner in Haynes and Boone labor and employment practice group in Fort Worth, Texas and is board certified in labor and employment law by the Texas Board of Legal Specialization.

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