Articles, Newsletters and Advisories
(by Alexandra Farone)
As social media continues to play an ever-more prominent role in our culture, employers are frequently faced with the uncomfortable situation of encountering an employee’s social media post that, at best, reflects unfavorably upon the employer or, at worst, is outright harassment or discrimination. Pennsylvania court decisions on the intricacies or enforceability of employers’ social media policies are few and far between, and do not create particularly useful guidance for employers in navigating the minefield of social media. Without such clarity, employers are encouraged to be mindful when drafting, revising or enforcing these policies to ensure compliance with existing guidance.
While public employers face the unique challenge of balancing employees’ constitutional free speech rights against protection of the employer’s reputation, private sector employers must also consider federal law when drafting a social media policy. The National Labor Relations Act (NLRA) gives unionized and nonunionized employees the right to act together to address wages, hours, and the terms and conditions of employment. Such “protected, concerted activity” could come in the form of an employee’s social media post complaining about, for example, vacation time, inadequate supervision or perceived poor safety measures. As early as 2012, the National Labor Relations Board (the board) issued a decision finding that a Facebook conversation can be protected, concerted activity, see Hispanics United of Buffalo and Carlos Ortiz, 359 NLRB No. 37 (2012). To qualify for protection, the speech has to be more than “mere griping.” Moreover, if the speech is egregiously offensive or knowingly and maliciously false, or if it disparages the employer without relating complaints to a term or condition of employment, it will likely not be protected. If, however, the speech raises a concerted or group complaint about a term or condition of employment, the employer must take care not to discipline the employee in a manner that runs afoul of the NLRA.
The following tips should help minimize the risk of adverse action against an employer that encounters an issue stemming from its employees’ social media activity:
- Include the social media policy in an existing employee handbook. Employees should acknowledge in writing that they have read and that they understand the contents of the handbook, including social media policies. This is particularly important because these policies can apply to conduct and postings on the internet that occur outside of the workday and workplace. Such an acknowledgement could minimize an employee’s ability to persuasively claim he was unaware of the social media policy and its scope, or that he did not understand the policy.
- Prohibit “speaking on behalf of the company” in the manner of a de facto spokesperson without prior written authorization from management and the marketing team. However, do not categorically prohibit use of a company name or logo, as this could be overly broad and could affect NLRA-protected activity.
- Ban disclosure of trade secrets and other confidential information. This is particularly important if the employer does not have an existing nondisclosure policy or agreement with its employees. In their social media policies, employers should prohibit the disclosure of trade secrets and other confidential information.
- Prohibit harassment and discrimination. The same statements that would be prohibited and grounds for discipline if made in the workplace should be equally prohibited in the digital forum of social media. In their social media policies, employers should prohibit harassment and discrimination on the basis of race, ethnicity, national origin, sex, religion, age and disability, as well as additional state and local protected classes.
- Encourage civility and respect. This message should apply to employees’ interactions with customers, clients and coworkers alike. Civility can always be required, but vague policy language demanding respect, particularly for the company, could be found to be overly broad by the NLRB. Employees could interpret such phrasing to prohibit any and all criticism of supervisors or the company as a whole, including protected, concerted activity.
- Closely review controversial posts concerning the terms or conditions of employment. As stated, only certain conduct constitutes protected, concerted activity. Consider: whether the posting refers to hours, wages, management or supervisors, a problematic coworker, or other terms or conditions of employment; whether the post is directed to, “liked,” “reacted” to, or commented upon by other employees, or otherwise appears to be made on behalf of other employees in addition to the individual poster; and whether the post is egregiously offensive, or knowingly and maliciously false as evaluated based upon the expected scope of knowledge of the posting employee given his role and position. It is important to note that the NLRB has a high standard for egregiously offensive statements, and often finds traditionally profane or offensive conduct to be protected. Employers should consult counsel for assistance in determining whether a particular post triggers NLRA concerns.
- Be consistent with disciplinary measures. Employers should take care not to open themselves up to a discrimination suit by failing to discipline online harassment in the same manner by which they would discipline harassment that occurred in person. For example, if an employee of a protected class is terminated for making harassing posts on social media but an employee outside of that protected class is not terminated for similar postings, the employer could be susceptible to a disparate treatment claim.
- Establish that there is no expectation of privacy when using a company’s email address, email server or internet system. Always preserve evidence as soon as possible by, for instance, taking a screenshot or making a copy of the questionable post, as an employee can quickly delete a prior post or manipulate privacy settings to hide the post. Maintaining screenshots for the disciplinary process and to defend against any litigation commenced by the employee. Documented screenshots with time stamps, where possible, can bolster an employer’s argument that disciplinary action was made pursuant to legitimate, nondiscriminatory reasons.
Alexandra G. Farone is an associate in Babst Calland Clements & Zomnir’s litigation and employment and labor groups. She counsels corporate clients regarding employment matters including best practices and procedures, and compliance with the FLSA, ADA, ADEA and Title VII. Contact her at 412-394-6521 or firstname.lastname@example.org.
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