United States: Social Media And The Workplace: 2012 And Beyond

2012 remained the year of continued questions and answers at the intersection between social media and employment law. Employees continue to use social media for personal and professional reasons in astonishing numbers, both inside and outside the "work day," and both inside and outside the "work place." Traditional work day and work place boundaries have given way to new realities today, and employers use social media to make employment-related decisions with increasing frequency. In this article, we take a nostalgic walk through the issues raised in this area in 2012, and play a little Nostradamus when it comes to what we might see in 2013.

There are several sources of obligations and potential exposure employers must consider when making employment-related decisions, from Title VII to federal and state statutes on the issue of monitoring electronic communications, to laws protecting an employee's right to engage in "legal activities." But the biggest obstacle for employers in 2012, and the one still generating the most press, has been the National Labor Relations Board (NLRB). The NLRB has jurisdiction to interpret and enforce the National Labor Relations Act, which was enacted in 1935 to protect trade unionists from unfair labor practices by employers, and afford employees a greater ability to organize and collectively bargain. Approximately 60 years later, the social media era began, when society (including the labor workforce) began to see the ease and benefit of engaging in collective activity without ever leaving one's computer keyboard.

In 2012, the NLRB's Office of General Counsel issued two separate guidance memoranda on social media issues, which, together with the healthy smattering of complaints of decisions also issued on that administrative level, have framed two issues. The first: When can employers make an adverse employment decision based on an employee's statement or conduct on social media? The second: What are the do's and don'ts when it comes to an employer's social media policies? The answer to the first question, like so many of those lawyerly answers you love: "It depends."

As you likely know by now, Section 7 of the Act provides that employees of both union and nonunion workplaces "shall have the right ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]" As a corollary to that benefit, Section 8 of the Act makes it an "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 of this Act[.]" Just as courts have grappled with the application of such traditional claims as defamation and harassment to conduct that takes place through social media, the NLRB has started to look at whether adverse employment actions (e.g., refusal to hire, discipline or terminate) taken as a result of an employee's social media postings or conduct constitutes an interference with the right to engage in concerted activities for the employee's mutual aid or protection.

The takeaway here is that employers should not be "trigger happy" when it comes to taking such adverse action, but rather should engage in an analytical exercise with the help of counsel.

Step 1 – Is the employee's social media posting or other activity concerted activity?

It is critical to remember that Section 7 of the Act only protects employee conduct if it is concerted. In that regard, the NLRB defined the term concerted in two cases in the mid-1980s, known as Meyers I and Meyers II. In those cases, the NLRB determined employee activity is concerted if it is engaged in "with or on the authority of other employees, and not solely by and on behalf of the employee himself." The Board added that there must be "some linkage to group action in order for conduct to be deemed 'concerted' within the meaning of Section 7."

The following are examples of employee activity that the NLRB has deemed to be concerted:

• Postings by an individual to survey co-workers about workplace issues, which resulted in conversations among co-workers.
• An individual sharing a concern with co-workers about an employer's administration of income tax withholding.

On the other hand, the following activity was not deemed to be concerted because the social media activity did not involve other employees in issues relating to employment:

• Facebook conversation with a relative about a restaurant's compensation and tip practices, where the employee referred to customers as "rednecks" and stated he hoped they choked on glass as they drove home drunk.
• Employee posted comments on a senator's Facebook wall, referring to his employer's contracts with fire departments and complaining about certain practices.
• Employee posted comments that, although they prompted co-worker responses, involved only "personal griping" about an individual dispute between employee and his supervisor.

Step 2 – If the answer to Step 1 is "yes," is the concerted activity protected concerted activity?

Employee activity is protected if it generally refers to or implicates the terms and conditions of the workplace. The NLRB seems to have adopted a broad view of the types of postings and discussions that implicate working conditions, requiring one to analyze both the social media statements themselves, as well as the context in which such statements were made. The following are examples of activity that the NLRB has considered to be protected:

• Employee sought input from a fellow employee about a dispute with a co-worker advocate who indicated that employees should have the organization's executive director settle their differences.
• Employee posted concerns about the impact that an employer's choice of food and beverage at an auto sales event might have on commissions received from sales.

Examples of activity that were deemed not to constitute protected activity include:

• Newspaper reporter tweeting about public safety beat matters and city homicides, in language containing sexual references, and also criticizing area television station.
• Employee engaging in Facebook conversation about being "spooked" by being alone on an overnight shift as a recovery specialist in a mental institution and making derogatory comments about some of the resident mental patients.

Step 3 – If the answers to Steps 1 and 2 are "yes," did the employee nevertheless lose the Act's protection?

At this stage, if the employee has technically engaged in protected concerted activity, one must still determine whether the employee nevertheless "crossed the line" by being so disloyal, and made a statement that was so reckless or maliciously untrue, as to lose the protection of the Act. That standard is rooted in two separate decisions issued by the U.S. Supreme Court in 1953 and the NLRB in 1979, and looks at whether employees "deliberately undertook to alienate their employer's customers by impugning the technical quality of the product." The NLRB identified four factors used to determine whether the employee crossed the line: "(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice."

Notably, the Supreme Court recognized that one cannot ignore "the underlying contractual bonds and loyalties of employer and employee" and that "insubordination, disobedience or disloyalty is adequate cause for discharge." However, employee conduct that is objectively innocuous and not overtly opprobrious will generally not result in a finding the employee has lost the Act's protection.

Step 4 – If the answer to Step 3 is "no," can the employer still meet its burden of demonstrating it would have taken the adverse action against the employee even in the absence of the protected concerted activity?

This last step is akin to the burden imposed on employers in the normal course of an employment discrimination case. Thus, if the employee's social media activity constitutes protected concerted activity (Steps 1 and 2), and if the employee's conduct did not cross the line so as to lose the Act's protection (Step 3), the employetr may be able to avoid liability if it can show the employment decision made or adverse action taken was based on a legitimate business reason other than the employee's protected concerted activity.

The second issue framed by the NLRB's work in 2012: What are the do's and don'ts when it comes to an employer's social media policies? The answer: Do narrowly tailor the protection of your valuable business interests, and don't be vague or overbroad. By now, most employers have long heeded the warning that policies must be in place to sufficiently proscribe harassment and discrimination, and prescribe effective complaint procedures for allegedly aggrieved employees to use.

As we near the close of 2012, it is equally critical that employers develop and implement appropriate and effective social media policies. But the NLRB has taken a little wind out of the sails of employers who believed they could prohibit and protect virtually everything. By way of some examples from the past year, the following social media policy provisions have been deemed to be impermissibly overbroad by the NLRB:

• Prohibiting the release of "confidential information" or "non-public company information" generally, or unless there is a "need to know" to do the job.
• Requiring posts to be "completely accurate and not misleading."
• Requiring an employee secure permission from the employer as a condition to engaging in what might be considered protected activity.
• Prohibiting generally the posting of photos, music, videos, quotes and personal information of others without obtaining the owner's permission, and from using the employer's logo or trademarks even for non-commercial use.
• Prohibiting "disparaging" or "defamatory" remarks, as well as "offensive, demeaning, abusive or inappropriate remarks" without further edification.
• Requiring employees think carefully about friending even their co-workers.
• Requiring employees to report "unusual or inappropriate internal social media activity."
• Prohibiting employees from commenting on pending legal matters.
• Prohibiting topics "that may be considered objectionable or inflammatory."
• Encouraging employees to resolve concerns by speaking through internal channels, rather than by posting complaints online.
• Prohibiting posts that may "harm the image and integrity of the company."
• Prohibiting any and all communications to the media, or requiring prior authorization before doing so.
• Requiring employees to be "courteous."

On the other hand, the NLRB noted with approval the following social media policy provisions:

• Prohibiting disclosure of specific examples of company information that does not relate to the employees themselves (or their terms and conditions of work).
• Requiring employees to respect all copyright and other intellectual property laws.
• Stating that employees should use their best judgment and exercise personal responsibility.
• Prohibiting online "harassment, bullying, discrimination, or retaliation that wouldn't be permissible in the workplace."
• Prohibiting posting anything in the employer's name without the prior authorization of the employer.
• Requiring employees expressly state that postings about the employer's products or services are the employee's own opinions, and not the employer's position.

This issue of what is considered permissible versus impermissible ultimately rests on a "reasonableness" analysis. Some esteemed commentators have opined that many of the NLRB's positions regarding impermissible and overbroad provisions are way over the top, constitute agency overreaching and will not ultimately hold up in court. However, until someone in a black robe agrees with the "overreaching" contention, the NLRB is the only voice of authority in the auditorium. The common thread that appears to tie all of the NLRB's statements seems to be the following from the NLRB's May 2012 memorandum: "Rules that are ambiguous as to their application to [protected] activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict [protected] rights are unlawful."

A LOOK AHEAD TO 2013

Finally, we have an opportunity to look beyond this past year and make an educated guess as to what will be the "hot" issues for employers in the social media area as we begin 2013. Nostradamus aptly stated in 1566: "I do but make bold to predict (not that I guarantee the slightest thing at all)." So, with that caveat, we offer the following predictions.

First, courts are likely to develop a body of law on what it means to click the social networking "like" button. A Sheriff in Hampton, Va., fired six of his workers in 2012 when one of them liked the Facebook page of an individual running against the Sheriff. The employees sued, and on April 24 a federal judge in the Eastern District of Virginia dismissed the lawsuit, holding that the employees were not entitled to free speech protection: "It is the Court's conclusion that merely 'liking' a Facebook page is insufficient speech to merit constitutional protection."

In another case, a discrimination claim was filed in 2012 with the EEOC by a man who alleges that the Library of Congress harassed and then ultimately fired him because his homosexuality did not comport with his supervisor's views on sexual orientation and religion. The man's homosexuality was gleaned only after it was learned that he liked a Facebook link to a group that supports gay adoptions. So, what does it mean to like something in social media, and to what extent does like equate with employee speech?

Second, it is abundantly clear employers will continue to test existing rules addressing monitoring an employee's electronic communications and Internet usage, as it is equally clear that employees will continue to raise privacy challenges to employer action. More laws like the "Facebook Password Demand" laws will be proposed and enacted, and current prohibitions against employer monitoring and surveillance will be molded to adopt to the new electronic realities.

Third, we will likely begin to see competition and restrictive covenant issues take shape in various legal forums. Does an employee violate a non-solicitation covenant by putting new employment contact information on his or her LinkedIn profile page that is also viewed by your company's customers? Does an employee impermissibly disclose "trade secrets" by discussing your company's products and services on a blog or in a good-intentioned tweet?

Fourth, we will likely see new definitions and best practices emerge from the ever increasing boundaries of the above-referenced work day and work place. Avatar games and other online relationship activities will test common notions of harassment and discrimination when an online virtual relationship spills over into the real reporting line of a supervisor and subordinate. And, wage and hour rules developed principally in the 1930's will be tested by employees who can perform work on any mobile device and get access to your systems from anywhere in the world, all while the employers have less of an ability to control (and keep track of) those hours "worked."

Justin Timberlake's character in The Social Network said: "We used to live on farms, then in cities .... Now we're all living on the Internet." The new realities in 2012 have had such an impact on the employer-employee relationship in 2012. It is certain that impact will continue to be felt as we move forward. Until then, relax, breathe and have a healthy and happy 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.