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Employers Beware: Restricting Employees on Social Media Publications Can Create Liability

October 12, 2017 | Christine H. Long
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Social media policies have been under increasing scrutiny. The recent decision of ESPN to suspend anchor Jemele Hill over politically charged tweets has again put social media policies in the spotlight. Employers need to ensure that their social media policies don’t run afoul of either state or federal laws. The National Labor Relations Board (NLRB), applies equally to union and non-union workforces and to businesses of all sizes, there are no small business exceptions. The National Labor Relations Act (NLRA) protects all employees’ rights to participate in what the NLRB calls “concerted activity” regarding the terms and conditions of their work without interference from the employer. The definition of concerted activity is broad and includes discussions about workplace conditions, including, for example, wages, hours, benefits, or safety issues.

NLRB’s View of Social Media Policies

In 2011, the NLRB began reporting on its investigations into company’s social media policies. The reports came on the heels of a lawsuit filed by the NLRB on behalf of Dawnmarie Souza, a former employee of the American Medical Response (AMR) of Connecticut. AMR fired Souza shortly after she went on a Facebook tirade against her manager and the company after a negative review. She claimed she was fired for the postings, AMR claimed she was fired for poor performance.

The NLRB argued Souza’s Facebook comments were protected by federal labor laws. According to the NLRB, because Souza made the Facebook comments on her own computer and during her personal time, her words constituted protected speech. The two key points the NRLB highlighted were that the posts were done outside of work hours on a personal computer, and they related to her working conditions. Thus, the NLRB drew a distinction as to when the employee made the post, as well as to the content of the post.

NLRB Actions in the Past Year

In recent case decisions, the NLRB has allowed social media policies that otherwise had a questionable restriction, if there was a “savings clause,” in the form of a statement that the employer will not interpret or apply any of its policies in a manner that would restrict employees’ rights under the NLRA.

The devil remains in the details. In 2016, the NLRB went after Chipotle when it asked an employee to remove the “confidential information” on his social media posts in accordance with Chipotle’s written policy.  The NLRB said the policy’s prohibition on disclosing “confidential information” violated the NLRA because the word “confidential” was not adequately defined, and the policy could therefore “easily lead employees to construe it as restricting their rights.” Once the NLRB reviewed the policy, it found further fault and asserted that Chipotle’s policy that an employee not use disparaging comments about the company, among other things, could possibly encompass protected speech. The NLRB went as far as to assert that Chipotle could not prohibit employees from making false or misleading statements unless the employee also had a malicious motive. In stark contrast, employees could be restricted from posting false or negative statements about co-workers if they could be deemed harassing or discriminatory regardless of motive.

Present Day Action of ESPN

Jemele Hill, the co-host of ESPN flagship show “SportsCenter” and face of the network, tweeted Sunday that fans could hurt Dallas Cowboys owner Jerry Jones by bringing pressure on his advertisers after Jones had pledged to bench any Cowboys player who refused to stand for the national anthem.

ESPN reported Monday that Hill was suspended for two weeks “for a second violation of our social media guidelines,” the first being her statement last month that President Donald Trump is a white supremacist. The company said it told her after this first comment that tweets reflecting negatively on the network “would have consequences.” ESPN did something few companies do, and followed through on its warning. ESPN demonstrated that it intends to enforce its written policies, but in the coming days and weeks there will be scrutiny over whether any aspects of the policy violate the NLRB.

Valid Policy Restrictions

The NLRB has no model social media policy and as administrations change, so do the standards of what is acceptable. A social media policy should have clear definitions, such as who owns the social media sites. If a company has spokesperson it should be clear that any posts that are done in the name of the Company are Company posts, not personal posts. It is important that the definitions be tailored and geared for the specific company. Companies that pull policies off the internet that are not related to their business can create more problems than those that they solve. As noted above, savings clauses that indicate that there is no intent to violate the NLRA will aid if there is an ambiguous phrase within the policy.

A review of NLRB actions demonstrates the following types of policies would likely be lawful – depending on the wording of course:

  • Policies that require compliance with the Company’s copyright, trademark, and other intellectual property policies, as well as related laws;
  • Policies that require employees maintain the Company’s trade secret or confidential information, provided that it is well defined in the eyes of the NLRB;
  • Policies that preclude an employee from using the Company’s name, likeness or trademark to promote a personal ideal, view or product;
  • Policies that preclude pressuring coworkers to connect, link, or communicate via social media;
  • Policies that prohibit posting discriminatory, harassing, or threatening remarks or similar unlawful/inappropriate conduct against other employees;
  • Policies prohibiting cyber-bullying or posts that contribute to a hostile work environment;
  • Policies that require employees to put disclaimers on their posts that their views are theirs and not those of their company.

Since the laws are constantly changing it is important that policies be constantly reviewed and revised to ensure they are current.

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If you have any questions about how this development may impact your business, please contact Christine H. Long, Employment Law Department Chair, at christine.long@berliner.com or (408) 286-5800.