The following is a reprint of an article by Hoover, Hull, LLP, a boutique business and commercial law firm in Indianapolis, IN.

Social media including Facebook, Twitter, and LinkedIn, have become mainstays in today’s business environment. Social media creates opportunities to promote products, recruit employees, and monitor employee performance. Public information posted online can also be a source of free discovery in litigation as plaintiffs may be compelled to produce public postings through formal discovery. See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (requiring production of employees’ social networking site in Title VII action alleging sexual harassment).

POTENTIAL RISKS

Employers can lawfully use information obtained from an online profile as a basis for an adverse employment action. However, used improperly, an employer’s reliance on social media postings can lead to potential liability.

For example, accessing information from password protected sites or around certain privacy settings may give rise to a claim for invasion of privacy or violation of the Federal Stored Communications Act (“FSCA”). See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 883-84 (9th Cir. 2002) (accessing online profile when the user has taken advantage of certain privacy settings resulted in an invasion of privacy claim); Pietrylo v. Hillstone Rest. Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009) (terminating two employees based on their statements made in invitation only MySpace chat group was a violation of the FSCA).

Employees’ “oversharing”, through social media, may also give rise to potential lawsuits. The use of an employee’s personal information, obtained from social media sites, may create possible liability if an employment decision can be linked to the employee’s protected class status.

In addition, the employer should be cognizant of legislative movement in this area. A growing number of states, including Colorado, Connecticut, New York and North Dakota have enacted “Lifestyle Laws” prohibiting adverse employment actions based on lawful, off-work conduct. See, e.g., Colo. Rev. Stat. § 24-34-402.5 (2009).

NATIONAL LABOR RELATIONS BOARD ACTIONS

Employers should develop policies to minimize risks created by social media. However, employers, unionized or non-unionized, should ensure their policies do not improperly restrict employees from discussing their wages, hours, or other working conditions.

 

The National Labor Relations Act (“NLRA”) is best known for establishing rights relating to union employment. In recent years, the National Labor Relations Board (“NLRB”) has stepped up enforcement of the NLRA’s protection of the right of employees – union or non-union – to engage in “other concerted activities.” 29 U.S.C. § 102.

 

Recently, the NLRB has focused on adverse employment actions in response to employees’ use of social media web sites. In the NLRB’s first complaint linked to social media, the NLRB filed an unfair labor practice charge against American Medical Response of Connecticut, Inc. (AMA), alleging that AMA violated the NLRA by terminating an employee for posting disparaging comments about her supervisor on Facebook. American Med. Response of Conn., NLRB No. 34-CA-12576 (October 2010). The employee’s co-workers were able to view and comment on the employee’s Facebook postings. After becoming aware of the postings, AMA terminated the employee. The termination was based, in part, on the company’s social media policy, which prohibited employees form “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, co-workers and/or competitor.”

 

In bringing the complaint, the NLRB alleged that the termination violated the employee’s right to engage in a protected concerted activity under the NLRA. In addition, the NLRB alleged that the company’s social media policy was overly broad and interfered with the rights of its employees to engage in a protected converted activity. The parties settled prior to a decision being reached. As part of the settlement, AMA agreed to revise its social media policy by ensuring that the policy did not “improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

 

More recent cases have reaffirmed the agency’s positions that the NLRA allows employees to discuss the terms and conditions of their employment with co-workers and others – including postings on social media websites. For example, the NLRB recently issued complaint against a nonprofit in Buffalo for firing five workers for Facebook posting that criticized working conditions including work load and staffing issues. Hispanics United of Buffalo, NLRB No. 03-CA-027872 (May 2011).

 

The case involves an employee who posted a coworker’s allegation that employees did not do enough to help the organization’s clients to her Facebook page. Other employees responded by defending their job performance and criticizing working conditions. After learning of the posts, the non-profit organization terminated the employees who posted comments, providing that their comments constituted harassment of the employee who made the original allegations. Similar to the AMA complaint, the NLRB alleged that the Facebook discussion was a protected concerted activity within the meaning of Section 7 of the Act. The complaint was originally scheduled for a hearing before an administrative law judge on June 22, 2011; however, at the date of publication no information has been released.

 

The NLRB also recently brought a charge against a car dealership in the Chicago area alleging unlawful termination of an employee who posted photos and comments on Facebook that were critical of the dealership. Karl Knauz BMW, NLRB No. 13-CA-046452 (May 2011). The employee and his coworkers were unhappy with the food and beverages at an event promoting a new BMW model. The employee was terminated for his critical postings. The NLRB brought a complaint alleging the employee’s Facebook postings were a protected concerted activity within the meaning of Section 7 of the NLRA, because it involved a discussion among employees about the terms and conditions of employment. The NLRB further alleged that the postings did not lose protection based on the nature of the comments. Unless settled, the case will be heard by an administrative law judge on July 21, 2011.

However, the NLRB’s protection of social media postings is not limitless. For example, the NLRB upheld an reporter’s termination based on his social media postings on Twitter. Arizona Daily Star, NLRB Div. of Advice, NLRB No. 28-CA-23267 (April 2011). The employer terminated the reporter because he posted inappropriate and unprofessional tweets. In response to the reporter’s allegation of unlawful termination, the NLRB general counsel office issued an advice memorandum that provided that such comments were not protected under the NLRA. The reporters comments criticized one of the paper’s headlines, poked fun at a local television news report and made light of the city’s homicide rates. The memorandum noted that this conduct “was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

BEST PRACTICES

The use of social media in the workplace, by both employees and employers, presents both opportunities and risk for employers. Employers can minimize the inherent risks in using social media by adopting and implementing appropriate social media policy. Given the flurry of activity on this topic, employers’ social media policies should establish clear guidelines for conduct while accommodating the protections of the NLRA. Employers should also proceed carefully and consult with counsel when deciding whether to discipline an employee for making derogatory comments about the employer.