While the definition of social media is nebulous, the impact of social media is not. Social media has changed the game; while social media is great for personal interactions, relationships, and browsing, it is equally effective for business activities. Everyone has a story of how they were approached by a friend about a business opportunity on social media, whether on Facebook or LinkedIn, solicited or unsolicited.
1. Social Media Information in the Hiring Context
Individuals provide a wealth of information on social media, much of it easily available through a casual search. Businesses thrive on information, so it is natural for employers to want access to that information and to want to use it in decisions relating to the hiring, and firing, of employees. Employers need to be careful in their use of information gleaned from social media or risk running afoul of state and federal laws and regulations.
Employers have to be aware of several potential practical and legal pitfalls when “vetting” employees via social media. First, the employer may find the right name, but the wrong individual. There might be tens of thousands of John Smiths, and hundreds in a single state. Even if an employer tries to narrow a search, it might be the wrong John Smith. ((Heather A. Morgan and Felicia A. Davis, Social Media and Employment Law: Summary of Key Cases and Legal Issues, Paul Hastings LLP (March 2013), p. 3)) The employer might also find inaccurate or outdated information. And unfortunately, an employer has few ways of verifying that the information available on Facebook, LinkedIn, etc. is accurate or up-to-date, short of asking the candidate or current employee directly. ((Id.)) Finally, and perhaps most importantly, if an employer uses information gained from social media that implicates a protected characteristic (e.g., race, color, national origin, religion, gender, disability, age, or citizenship status), the employer may be in violation of Title VII of the Civil Rights Act. ((Gaskell v. Univ. of Kentucky, No. CIV.A.09-244- KSF, 2010 WL 4867630 (E.D. Ky. Nov. 3, 2010).))
In Gaskell v. University of Kentucky, an applicant for a position at an observatory had displayed evidence of his religious beliefs on his personal website. ((Id. at *2.)) The court held that there was a triable issue of fact as to whether the university had used the impermissible information in making the employment decision. ((Id. at *9.)) The court refused to grant the university’s motion for summary judgment. ((Id. at *10.))
Asking for access to candidates’ or employees’ personal social media accounts is equally dangerous. By 2012, several states had laws prohibiting employers from requesting employees’ personal social media user name and password information. ((Morgan and Davis, supra note 1, at 4.)) This number has continued to grow. ((Id.)) These laws can create private rights of actions that have the potential to create large damage awards and attorneys’ fees. ((Id.))
2. Social Media Use and Current Employees
One crucial item on any employer’s checklist when approaching this area is developing a well-crafted, narrowly tailored social media policy. Doing so protects the employer and gives employees guidelines to follow.
The National Labor Relations Board (“NLRB”) has taken the lead in defining what is or is not an acceptable social media policy. Even still, finding the right balance can be tricky. The key law here is Section 7 and 8 of the National Labor Relations Act (“NLRA”), which provides as follows:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).” ((29 U.S.C.A. § 157 (West).))
Section 8(a)(1) of the NLRA forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” ((29 U.S.C.A. § 158 (West).))
The essential question, then, is whether an employer’s social media policy does, or could potentially, interfere with an employee’s right to self-organization.
In Costco Whole Sale Corporation, the NLRB found that Costco violated Section 8(a)(1) of the NLRA) by issuing a social media policy containing a prohibition on employees’ posting statements electronically that damage “[Costco] . . . or damage any person’s reputation.” ((Costco Wholesale Corp., 358 NLRB 1100 (2012).)) The NLRB analyzed the policy by examining whether the rule could be reasonably construed by employees to prohibit Section 7 activity. ((Id.)) In this case, even though Costco’s rule appears to have nothing to do with Section 7 activity, the broad prohibition “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” ((Id.))
This is an extremely broad application of Section 7 protections, and employers need to be aware that their social media policies may have a chilling effect on protected activity. At the very least, social media policies need to have a disclaimer exempting protected activity. If employees could “reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the [employee] or its agents),” the employer could face an unfortunate result with the NLRB. ((Id.))
However, proactively revising a social media policy could protect an employer if the revision conforms to NLRA requirements. In Walmart, the NLRB found that Walmart’s revised social media policy did not infringe on protected employee communications. ((Walmart, Case 11-CA-067171, 2012 WL 1951766, at *1 (May 30, 2012).)) The NLRB laid out a two-step test to determine whether a social media policy would be unlawful under the NLRA.
“First, a rule is unlawful if it explicitly restricts Section 7 activities. If the rule does not explicitly restrict protected activities, it will violate the Act only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” ((Id.))
This test is applied broadly. The NLRB held that “rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.” ((Id. at *2.)) To be lawful under Section 8(a)(1), the social media policy must be narrowly tailored. This means, essentially, that an employer has to provide examples of “clearly illegal or unprotected conduct, such that they could not be reasonably construed to cover protected activity[.]” ((Id.)) For example, in the Walmart case, the NLRB found that a rule against “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” is not unlawful as long as there is no evidence that the employer was using the rule to discipline Section 7 activity. ((Id.)) The NLRB also found that a rule exhorting employees to be “fair and courteous,” while potentially overbroad, was not unlawful as long as there were provided “sufficient examples of plainly egregious conduct[.]” ((Id.))
3. Firing an Employee because of Information Gained from Social Media
It’s an easy scenario to picture: an employee and a manager aren’t getting along. The employee takes to social media to vent his frustrations. Either the manager is already connected with the employee on social media or another employee notifies the manager of the posts; in any event, the manager somehow finds out about the employee’s posts on social media. The manager is upset and fires the employee.
Does this firing violate the law? The analysis again turns on whether the manager, by firing the employee, has disciplined Section 7 activity under the NLRA.
Consider the case of Hispanics United of Buffalo, Inc. (“HUB”). ((Hispanics United of Buffalo, Inc., 359 NLRB 368, 368 (2012).)) In the HUB case, a social worker consistently criticized her coworkers. ((Id.)) One coworker finally had enough and posted on her personal Facebook page asking the other employees of HUB whether they agreed with the criticizing social worker. ((Id. at 369.)) Several other employees responded to the post objecting to the behavior of the criticizing social worker. ((Id.)) The criticizing social worker brought the post and the responses to attention of the executive director of HUB, who promptly fired the employee who posted on Facebook and the four employees who responded. ((Id.))
The NLRB determined that there was a four-part test that applied to determine whether the employer had violated the employees’ rights by firing them.[T]he discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity. ((Id.))
In the HUB case, only elements (1) and (3) were disputed. ((Id.)) Because the employees “made common cause[,]” their activity was concerted. ((Id.)) Moreover, this concerted activity was clearly protected by the NLRA. ((Id. at 370.)) “[T]he employees were directly responding to allegations to allegations they were providing substandard service to [HUB’s] clients.” ((Id. at 370))
In a similar case, a catering employee was fired after posting disparaging comments on Facebook about his supervisor. ((Nat’l Labor Relations Bd. v. Pier Sixty, LLC, 855 F.3d 115, 118 (2d Cir. 2017), as amended (May 9, 2017).)) In Pier Sixty, the Second Circuit held that the NLRB correctly ruled that the employee’s comments were protected under the NLRA. ((Id.)) As long as the “subject matter of the message included workplace concerns,” the vulgarity of the message was not so egregious as to escape the NLRA’s protection. ((Id. at 124.))
The broader principle is clear. If employees are communicating together in mutual aid and about workplace concerns, they are engaging in protected activity under the NLRA. Employers need to be extremely careful in this situation. It’s understandable to be concerned or upset when employees appear to be spreading potentially harmful information or allegations; even so, firing the employee may create a violation of labor law and expose the company to harsh penalties.
Because social media dominates so much of everyday life, it was inevitable that social media would become a major issue in the work place. From starting your job to losing your job, what you post on social media and your online identity clearly matters. Employers want access to this freely available treasure trove of information. However, accessing that information by itself, let alone using that information, might be enough to create a major legal headache and generate a massive expense of time and resources. Employers should consult with counsel to develop policies and procedures that protect themselves from inadvertently violating the law.
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