The use of social media in the workplace is becoming commonplace. Left unchecked, an employee’s “tweet” or Facebook post can doom an employer’s reputation — and, inevitably, its bottom line. Take the staff member at a zoo in Illinois who posted a racially charged comment while “on the clock” or the photograph of a California fast-food employee who mimicked licking a stack of taco shells in the kitchen. Although the acts were done in jest, the incidents were hardly laughing matters for the employers as they had to respond to the public relations nightmares that ensued.
This issue was a hot topic at the recent “Young Lawyer Speed Round” hosted by the Association of Southern California Defense Counsel during its annual Litigation Conference in La Jolla, California. Presenting on “Social Media in the Workplace: Tips for Employers in the Digital Era,” I discussed how companies can be held liable for their employee’s social media use — and “best practices” for businesses to follow to minimize exposure.
The general assumption is that a private employer may regulate social media use without restriction. However, a blanket policy prohibiting social media use altogether may violate federal law. Under the National Labor Relations Act (NLRA), employees enjoy the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” More simply, the NLRA protects two or more employees who take action for their protection regarding the terms and conditions of employment. The nature of protected activity does not change if the employee’s statements are communicated on the internet or through social media platforms (think Facebook, Twitter and Instagram). For example, the NLRA would protect employees who exchange comments on a Facebook post concerning their wages — even if the remarks are critical of the employer.
The scope of the NLRA is indeed broad (and perhaps intentionally vague), but it is not without limitation. An employee’s personal grievances do not enjoy protected status, nor does the NLRA defend actions carried out by employees in a reckless or malicious manner. The NLRA is designed to protect employees who discuss employment policies and practices that apply to, or affect, a group of people. The more personal and severe the communication, the less likely the social media post will be protected by the NLRA.
It is important for an employer to understand this (developing) body of law because it is unlawful to retaliate against any employee who participates in protected activity, and the potential penalties for violating the NLRA can add up quickly. If, for instance, an employer discharged the employee who took to Facebook to discuss wages paid by the company, that employer may ultimately be ordered to compensate the employee for lost wages and benefits as well as attorneys’ fees and costs. The employer may also be compelled to reinstate the employee and/or readjust his or her seniority and status.
So what is a company to do? For starters, it is recommended that the employer implement a NLRA-compliant social media policy; or, if a policy is already in place, verify that the policy does not infringe on federal law. Once the written policy is adopted, it is paramount to communicate the policy to employees and convey a clear understanding as to what social media use is appropriate and permitted. Just as with other policies, the restrictions need to be clear and defined as the presence of ambiguous statements can result in unnecessary liability. Here is a good example: Rather than a policy that broadly forbids statements that are slanderous or detrimental, craft a policy that precludes social media posts that are “slanderous or detrimental to the company” and provide examples of prohibited conduct (statements that are discriminatory or harassing). Another lawful restriction might include requiring an employee to receive prior authorization before posting a message on social media that is in the employer’s name or could reasonably be attributed to the employer.
The most important step is to enforce the terms of the policy consistently. These preventive measures, if followed, can greatly reduce the likelihood of future litigation.
Geoffrey Thorne is an award-winning attorney at Higgs Fletcher & Mack, LLP. He represents individuals and companies — both local businesses and Fortune 500 corporations — in a variety of practice areas, concentrating primarily on matters relating to employment and business disputes. Contact him at firstname.lastname@example.org.