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Bar News - April 16, 2014

Labor & Employment Law: Why Government Regulators “Unlike” Social Media


Social media, in one form or another, is here to stay. While the popularity of social media outlets varies, their broad use cannot be denied. With the explosion of smartphones, tablets and similar devices, employees stay connected, including during working hours. At the same time telecommuting and remote access, with employer-provided and personal devices, to workplace technologies have eroded the boundaries of work and non-work time and activities.

Employers have scrambled to keep up, because with employee access to employer computer networks, the risk to employers has increased. Those risks include theft of confidential or proprietary information, sexual harassment, retaliation, bullying, defamation, fraud, identity theft and other claims or potential liabilities.

While employers can, with proper notice, monitor sent, received and stored emails, messages, data and images on their computer networks, changes in technology, the law and enforcement policies are making that monitoring more difficult. While employers have tried, through social media and related computer-use policies, to remind employees of employer monitoring rights and that work time is for work, those policies, which once provided comfort and protection for employers, are now running into some opposition.

Recent developments at the National Labor Relations Board (NLRB) have reinforced the need for all employers – unionized or not – to pay careful attention to monitoring of employee computer use, especially the development, communication, and enforcement of social media policies. Employers should be aware of the NLRBs new focus on any disciplinary action against employees based on the employee’s use of social media. That is when the messages involve protected concerted activity, which generally involves the right of employees to communicate and act together to improve their wages and working conditions. The board’s focus on social media has been particularly aggressive in non-union workplaces.

By way of example, in December 2012, the NLRB ruled in Hispanics United of Buffalo, Inc. that a non-union social service agency violated the National Labor Relations Act when the agency terminated four employees under its bullying/harassment policy. The four employees posted comments on a Facebook page in response to criticisms of their work performance by a fifth employee. The fifth employee, in turn, objected that their criticisms of her were slanderous and defamatory and complained to the agency’s director. The director terminated the four other employees on the grounds that their Facebook posts violated the agency’s zero-tolerance policy against bullying and harassment.

The NLRB held that the terminations violated the National Labor Relations Act, which protects “concerted” activity by employees (including non-union employees). The board found that the four employees’ conduct could not reasonably be found to be harassment or bullying. Furthermore, the board held that even if the conduct did constitute harassment or bullying, the NLRA’s protection of concerted activity would override the policy. The board found that the employees were seeking “mutual aid” in preparing for group action in response to potential disciplinary action resulting from the complaints of the fifth employee. One member of the board dissented, arguing that the majority was wrong in finding “concerted activity” in what was simply employees “venting to one another in reaction to” the criticism of the fifth employee.

The Hispanics United decision and the stated enforcement policies of the NLRB place employers in an uncomfortable position. More and more employers need to provide employees with remote access so they can do their jobs, but they also need to monitor employee use of their computer system to protect their legitimate business interests. The board takes the position that employee speech and expressive activity on social media deserves the same treatment as regular speech. This was the justification for the board’s position in the Hispanics United of Buffalo case.

Like most cases involving technology and balancing business interests and protected speech, the analysis in these cases is very fact-specific. In another NLRB case, Knauz BMW, 358 NLRB No. 164 (2012), the board ruled that a car salesman’s Facebook posts about the dealership’s marketing efforts were protected, but the board also found his termination for a post about a test-drive car crash at a neighboring dealership to be unprotected and therefore permitted.

With the new fully constituted board, more activity on social media related cases is likely.

Last year there were several stories in the media about employers asking applicants and employees for their user names and passwords to social media sites. Other employers were reportedly asking applicants and employees to modify their privacy settings so they could view social media posts and the posts of friends, contacts and associations. Those efforts were met with resistance, from regulators and state and federal legislators. In Congress and in several state legislatures, including New Hampshire, bills are pending that would prohibit employers from (i) requiring or requesting an employee or applicant for employment to disclose a username, password or other means for accessing a personal social media account, and (ii) discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with such a requirement or request.

More recently, the US Equal Employment Opportunity Commission (EEOC) has joined the discussion about social media. The agency, which enforces federal discrimination laws, has expressed concerns that employer access to employee social media activity may actually chill employee discrimination complaints.

Many people assume that just their friends and connections will see those posts. Others simply don’t consider, when they post messages or images, who might eventually see them. Therefore when those posts might be revealed to an employer, a lawyer, an agency investigator or a jury, many people, according to EEOC, to avoid embarrassment or worse, avoid filing complaints or withdraw complaints of discrimination or retaliation they might otherwise pursue.

The agency is looking more closely at this issue. While there’s no solid guidance yet, the expression of concern by EEOC is usually an indication that guidance and enforcement actions, or at least a closer look at cases, are on the horizon.

In short, the balancing of employer and employee rights with regard to social media posts and the involvement of government agencies who enforce workplace laws seem to be evolving faster than a Twitter feed.

Stay tuned.

Jim Reidy is a management side employment lawyer. He is the chair of Sheehan Phinney’s Labor and Employment Law group and chair of the NH High Tech Council’s Human Resources Exchange.

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