Employers who think the biggest workplace concern about employee use of social media websites is the productive time lost when employees check their Facebook pages at work are sadly misinformed.
Social media websites give workers an unprecedented opportunity to publish information on a broad scale, and many employees take advantage of that opportunity to post information about their workplace, their employer, their coworkers, and the customers or clients with whom they work.
Not all of that information is favorable or flattering, and no matter what privacy controls an employee places on his or her social media page, once the information is posted, the employee loses control over it.
While most employee postings on a social media site such as Facebook or Twitter may seem innocuous, some can have serious legal ramifications for employers.
For example, suppose a manager posts racially offensive jokes or cartoons on his social media page or posts a rant about foreign-born workers taking “American” jobs.
If that manager makes an employment decision adversely affecting a racial or ethnic minority, those postings could be used as evidence of bias in an employment discrimination lawsuit brought against the employer.
Suppose a supervisor becomes the Facebook “friend” of a subordinate employee, and the employee posts messages disclosing that her mother died of breast cancer.
That information constitutes information protected by the Genetic Information Nondisclosure Act (GINA), and although the supervisor innocently acquired the information, possessing that information renders the employer vulnerable to a claim that it unlawfully used the information in violation of GINA.
Managers or supervisors who post sexually suggestive messages on an employee’s social media page may be creating a sexually hostile work environment for which the employer may be held liable, even though all of the postings were done off duty and on a personal computer.
Employment discrimination issues relating to social media use are not the only area about which employers need to be concerned.
Employees can, quite unintentionally, disclose an employer’s confidential information and trade secrets to a wide audience on a social media site.
Even something as innocuous as photographs of a workplace celebration might disclose confidential information that could be used by a competitor.
An employee’s online complaints about a customer might result in the loss of business for the employer and possibly a defamation claim.
Even when employees are genuinely enthusiastic about their employer and praise the employer’s products or services on a social media site without disclosing their connection to the employer, those postings can constitute deceptive endorsements in violation of federal regulations on false advertising. In some instances, the employer can be held liable for those deceptive endorsements, even though the employer did not direct the employee to post them.
With so many legal risks associated with employee social media use, should an employer simply prohibit employees from posting anything about the employer or its workforce or products on a social media page? The answer is “no.”
Such a sweeping prohibition against work-related postings would violate the right of nonmanagerial employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under the National Labor Relations Act (NLRA).
Under the NLRA, if an employee’s work-related social media postings can be viewed as concerted in nature — that is, involving joint action by two or more employees — and for the purpose of mutual aid or protection — that is, seeking to achieve some goal relating to the terms and conditions of employment — those postings constitute protected concerted activity under the NLRA, regardless of whether the employees work in a unionized or union-free workplace.
For example, exchanges between employees on a social media site will ordinarily constitute protected concerted activity when they relate to workplace matters of concern to multiple employees, such as the actions of supervisors, rates of pay, hours of work or other terms and conditions of employment.
It is generally unlawful under the NLRA for an employer to interfere with an employee’s right to engage in protected concerted activity, whether by adopting workplace rules prohibiting employees from engaging in protected concerted activities or by taking adverse employment action against an employee for engaging in such activity.
The NLRA should not, however, deter employers from ignoring the potential liability and harm to their businesses that can stem from employee misuse of social media.
It is in the best interest of an employer to have a detailed policy on social media use by employees. Such a policy should be carefully drafted to protect legitimate employer concerns without infringing on employee rights or creating an oppressive “Big Brother” atmosphere for workers.
This means drawing a fine line.
A private-sector employer may prohibit employees from disparaging the employer’s goods and services on social media websites, but prohibiting postings that contain derogatory statements about management or complaints about working conditions may unlawfully infringe on employees’ rights under the NLRA.
To avoid potential liability from an overly broad social media policy and to maximize the effectiveness of the policy, employers should seek the advice of legal counsel experienced in labor and employment law when drafting the policy.
Communicating a lawful social media policy to employees can help forestall social media activity that can have adverse financial consequences for an employer’s business, and having such a policy can provide valuable guidance to managers and supervisors when taking employment actions related to social media activity.
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Kilpatrick Townsend partner John Alden practices in the areas of labor and employment law. Alden has litigated and arbitrated a wide variety of disputes throughout the United States and currently represents management in all areas of labor and employment law.
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Kilpatrick Townsend senior attorney Chuck Rice also practices in the areas of labor and employment law. Rice frequently advises employers on matters relating to the Americans with Disabilities Act, the Family and Medical Leave Act, workplace substance abuse programs, wage and hour issues, and work force reductions.
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