Why Employers Need Social Media Policies
Although social media is great for developing business, expanding a brand or building a network, it is not without pitfalls. There are an increasing number of cases where an employee’s use of social media has created problems for the employer. The best practice is to maintain a well-written social media policy. Real-world problems can and do arise from the use of social media.
Who owns the social media account, the employer or the employee? Several recent cases highlight the need to have digital ownership - and use - clearly included in social-media policies.
The chief editor of a hi-tech blogging site established and maintained a Twitter account on behalf of the blogging site, which he used to discuss the company’s products. The employee-editor accumulated 17,000 followers over a course of years using the Twitter account, which was held in his employer’s name. When he left his job, he changed the Twitter account name to his own name and kept the 17,000 followers. The employee then posted other articles he had written. The employer argued that it owned the Twitter account because the account was established in its name, and it had used its resources to help establish the account. The parties reached a confidential settlement.
In an Illinois case, a former employee refused to give up control over a LinkedIn group that had over 600 of the employer’s current and potential customers. The court found that the employee may be liable for breach of his non-compete agreement, violation of the Illinois Trade Secrets Act, and common law misappropriation.
In a California case, an employee was sued for misappropriation of trade secrets because he continued to maintain his LinkedIn contacts with the company’s clients after his termination. The court denied the employee’s motion for summary judgment, which asserted that the claim should be dismissed because LinkedIn contacts do not constitute a trade secret, and anyone can see who his contacts are on LinkedIn. He also argued that he was encouraged to make contact with these customers while employed.
Disparaging Posts and Gossip
Problems also arise when employees use social media to express their personal opinion about news events. During the last election, many employees posted their opinions about the presidential race, which potentially caused problems if an employee’s personal political view was tied to an employer. Posts can become viral quickly. In a highly publicized case, an Arizona man was upset that the CEO of Chick Fil A publicly announced his opposition to gay marriage. To show his disgust, he posted a video on YouTube of himself driving through the Chick-fil-A drive thru in which he belittled the drive thru employee by asking her how she could work for such a hateful corporation. The man was fired from his job as the CFO of a medical-manufacturing company.
In another case, a food-service director complained to management that graphic sexual images of her were drawn on a bathroom wall and later posted on social media. She was fired soon after complaining. The court found it significant that the supervisor not only knew workers were passing around cell phones to view the graphic Facebook posts but also ignored the employee’s complaints. The drawings were shared on Facebook during working hours, which also supported the finding that the alleged harassment was severe enough to create a hostile work environment.
National Labor Relations Act
Section 7 of the National Labor Relations Act (the "NLRA"), which applies to almost all private employers, states that employers may not retaliate against an employee because he or she engaged in “concerted activity.” What this means is that employers may not retaliate against an employee who took action to improve the wages, hours, and working conditions for themselves and their fellow employees. For example, the employee wrote the following post on Facebook: “Management is terrible. We deserve to be paid more and treated better.” An employer may violate the NLRA by terminating this employee because the employee is arguably taking action to improve the wages and working conditions of the workforce. Conversely, if the employee posted “I think my supervisor is hot,” this would not violate the NLRA.
The National Labor Relations Board (“NLRB”) has made it clear that social networking sites are platforms where employees may engage in "concerted activity." In August 2011, the NLRB released a General Counsel Report, which analyzed its investigation of approximately 14 cases involving social media and alleged violations of the NLRA. Though the report does not draw definitive lines as to what constitutes protected activity, it does cite guidelines for deciding when an employee's use of social media may be considered protected activity. For example, postings that may be protected “concerted activity” are those that
- Discuss terms and conditions of employment;
- Have co-workers involved in the posted discussions;
- Directly relate to or come about from earlier discussions; and
- Invite coworkers into action.
Drafting a Social Media Policy
Due to the changing legal landscape, variation among state laws, and the need to account for an employer’s unique circumstances, there is no one-size-fits-all social media policy. Employers should seek legal advice from a local attorney experienced in intellectual property and employment law with a good understanding of how these social-media sites function.
About the authors: Maria Crimi Speth is an attorney at Phoenix law firm of Jaburg Wilk and chairs their Intellectual Property Law Department. She is a frequent speaker on intellectual property law, internet law, trademark and copyright law and is the author of the book, Protect Your Writings: A Legal Guide for Authors.
Jeffrey Silence is an employment law attorney at Jaburg Wilk who helps employers with compliance, social media and other employment issues.