5 Social Media Questions All Employers Should Consider

Five Social Media Questions All Employers Should Consider

© 2015 Fredrikson & Byron, P.A.


About the Authors

Teresa ThompsonEmployment Law [email protected]

Norah Olson BluvshteinEmployment Law [email protected]

2

mailto:[email protected]


Leveraging social media is critical to the success of any business today.

Customers use social media as a source for reviews and “word of mouth” referrals.

© 2015 Fredrikson & Byron, P.A.3

Without a social media strategy, businesses will miss a key opportunity.

With opportunity, however, comes risk, as organizations need to:


• Protect private information • Manage liability relating to employee use

(and misuse) of social media• Preserve their online image and brand

4


In this guide, you will find five key questions relating to social media that all employers should consider.

5

Question One:When is it okay to fire an employee for a social media post?

Five Social Media QuestionsAll Employers Should Consider

Employees engage in – and post about – all sorts of questionable activities. And, more often than not, one of the employee’s coworkers will see the post and provide a copy to management.

When that happens, and when the post is particularly inflammatory, the knee jerk reaction may be to fire the employee for the post.

But as most savvy employers know, not all posts are created equal. Some are legally protected and cannot form the basis for a termination decision. Others are not.

As a result, employers should step back and do some analysis (and seek legal counsel) before engaging in a “Facebook firing.”


Is the post protected activity?

Some social media posts are protected by state or federal laws. For example, under Section 7 of the National Labor Relations Act (NLRA), employees have the right to discuss the terms and conditions of their employment, and that term is interpreted extremely broadly.

Classic examples include an employee’s right to discuss his or her wages with other employees, and an employee’s right to criticize his or her supervisor.



Here are a few examples of how employees’ rights under the NLRA play out when employees are terminated for their social media activities:

American Medical Response

In the case that seems to have started the wave of National Labor Relations Board (NLRB) cases dealing with Facebook firings, paramedics at an emergency response company engaged in the following posts about their supervisor:

Employee: “Looks like I’m getting some time off. Love how the company allows a 17 [AMR code for a psychiatric patient] to be a supervisor.”Coworker: “What happened?”Employee: “Frank being a dick.” … “Yep he’s a scumbag as usual.” …

After the employee was terminated for the posts, the employee brought an unfair labor practice charge. The NLRB found the termination unlawful, in part because the paramedic engaged in protected conduct by protesting a “supervisory” action.

9

http://apps.nlrb.gov/link/document.aspx/09031d458055b9c4


Martin House, Inc.

After a series of cases similar to American Medical Response, the NLRB began issuing opinions that appeared to place some limits on the type of posts employees could get away with – finding some social media posts were not in fact protected. For example, in Martin House, Inc., the employee (a recovery specialist at a residential home for residents with mental health issues) posted as follows:

Employee: “Spooky is overnight, third floor, alone in a mental institution, btw Imnot a client, not yet anyway.Employee: “My dear client ms 1 is cracking up at my post, I don’t know if sheslaughing at me, with me or at her voices, not that it matters, good to laugh.”

Here, the posts were found not to be protected activity because the employee had not engaged in concerted activity with co-workers. While the employee engaged in conversation about the above posts with Facebook friends, these friends were notemployees of Martin House. Therefore, the NLRB found that the employee was “merely communicating with her personal friends” and found no violation.

10

http://apps.nlrb.gov/link/document.aspx/09031d458056e73e

http://apps.nlrb.gov/link/document.aspx/09031d458056e73e


Triple Play Sports Bar and Grille

In a swing back toward finding protected concerted activity, the NLRB has argued that even “liking” a comment complaining about a boss’s behavior may be protected. In Triple Play, several employees were fired following these Facebook comments and the associated “likes”:

Coworker 1: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!”

Coworker 2: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

Employee: “I owe too. Such an a**hole.”

Because the comments and “likes” were between coworkers regarding a work dispute, the NLRB found they were protected concerted activity. Additionally, the Board found that Triple Play broke the law by threatening their ex-employees with a defamation suit unless they retracted their Facebook comments.

11


Pier Sixty, LLC

In another recent case, the NLRB appears to be veering even further to the extreme, finding even inflammatory posts protected. In Pier Sixty, LLC, an employee who was upset with the way his supervisor was treating him, took a break from work and posted this:

“Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Even though the post was filled with profanity, the NLRB found that his post was protected under the NLRA given the “totality of the circumstances.”

12

http://apps.nlrb.gov/link/document.aspx/09031d4581b92710

http://apps.nlrb.gov/link/document.aspx/09031d4581b92710

ü Does the post really justify discipline/termination, or should it simply be ignored?


Oftentimes, growing a thicker skin and letting some negative or disparaging social media posts go is the best course. Other times, action is warranted, but it’s a good idea to step back and look at the larger context of the situation before acting.

Ultimately, though, when faced with a termination or discipline decision, in addition to determining whether the post is legally protected, another question you should ask is much more practical:

13

Question Two:Can I monitor an employee’s social media and other online activity?


Monitoring Employee Social Media

At some point you may be faced with a situation where you have reason to believe one of your employees is violating your organization’s social media policy.

Perhaps a coworker reports that an employee is posting disparaging comments about a client, a patient, or another coworker on Facebook or Twitter.

In order to investigate, you may want to monitor the employee’s social media activity or other online activity. Before engaging in such monitoring, however, you need to ensure that the monitoring will not violate any state or federal privacy laws.

Here are a few points to consider:


1. Is the information publicly available?

Can you gather the evidence you need for your investigation through public sources?

ü If the employee has no privacy settings in place on his or her social media accounts and the posts are available to the “world” then that information is probably fair game.

ü Likewise, in most cases, if a coworker voluntarily, on his or her own initiative, provides a copy of an employee’s post to management, that post likely will not be considered private. Nor is a post read by a supervisor, where the employee previously “friended” the supervisor (a situation, however, that supervisors should attempt to avoid in the first place).

In contrast, if you have to use the employee’s password to obtain the information, or if you have to use subterfuge or coercion to gain access to the post, that is not “fair game” and you should not engage in such activity. (In fact, in many states it is against the law to require that an employee or job applicant provide an employer with their social media login information.)


2. What does your organization’s social media or electronic use policy say?

Consider what steps you can take to make sure the monitoring is reasonable and focused as narrowly as possible to get you the information you need but not extraneous – and possibly protected – information.

Social media posts often contain a mixture of personal and professional information, so the more often you can filter out non-relevant personal information, the better.


ü Is the employee on notice that he or she can be monitored, or does the employee have an expectation of privacy?

ü If you are relying on a generic electronic monitoring policy, has it been updated to reflect that electronic monitoring includes monitoring of social media activity?

17

3. Seek legal counsel.

Employee privacy rights and monitoring laws vary a great deal from state to state (not to mention from country to country). Investing in legal assistance on the front end can help you avoid greater pain and liability down the road.


Question Three:When my employees use social media for work, who owns the accounts?


As with many questions in this area, the answer may depend on policies established at the

outset of the employment.

Prosecutors can subpoena Facebook logs, and Tweets may constitute free speech, but when an employee uses social media as part of their job, who owns the account?


The dispute, PhoneDog Media v. Kravitz arose from Noah Kravitz’s Twitter account, “PhoneDog_Noah,” which Kravitz created while employed at PhoneDog. He used the account to promote PhoneDog’s services and eventually amassed 17,000 followers.


PhoneDog Media v. Kravitz

When Kravitz left the company, PhoneDog asked him to stop using the Twitter account. Kravitz responded by simply changing his handle to “noahkravitz,” and he attempted to keep the account and its followers.

PhoneDog sued, but the case ultimately settled, so we don’t have a court opinion deciding who owned the account or followers. Nevertheless, this case shows that lack of clarity on who owns a social media account can lead to costly litigation.

21

Eagle v. Morgan provides a clearer example of what can happen when a company fails to create social media ownership policies.

In that case, Linda Eagle, an executive at Edcomm, claimed that Edcomm wrongfully took over her LinkedIn account when she was terminated.

Edcomm used her username and password to replace her picture with that of another employee, but left Eagle’s honors, awards, recommendations and connections in place.


Eagle v. Morgan

22

She also admitted that another Edcomm employee assisted Eagle in maintaining her LinkedIn account and that employee had access to Dr. Eagle’s password.

Edcomm, meanwhile, argued that it owned any LinkedIn account created with an Edcomm email address. The company said it urged its employees to create LinkedIn profiles with Edcomm templates and Edcomm email addresses.


Eagle admitted that she created and used her account to promote Edcomm’sbanking education services; foster her reputation as a businesswoman; reconnect with family, friends, and colleagues; and build social and professional relationships.

23


The court noted that Edcomm did not have a policy informing the employees that their LinkedIn accounts were the property of the employer, and that it was questionable whether such a policy would have been enforceable because it contravenes LinkedIn’s “User Agreement,” which states that the account belongs to the individual.

The court ultimately ruled for Eagle.

24

With these cases in mind, what can you do to make sure you do not end up in a dispute with a departing employee over who owns a social media account they controlled or operated during their employment?

1. Address ownership up front.


Ensure that you have defined (via agreements or policies) that the company not only has the right to access the site, but also owns the site and all site

content. Do not wait until the employee departs the company.

25

Many lawsuits arise because employees leave and convert the sites for personal use, refusing to return the site or administrative access to the site.


As with many things, taking the time up front to make sure everyone is on the same page about who owns a work-related

social media site is well worth the investment.

2. Make sure that you have administrative rights and passwords to all sites designated as “business” sites.

26

Question Four:How can I use social mediato screen job applicants?


Do you use social media to conduct a social media “reference check” on your applicants?


If so, you are one of the 91 percent of employers who admit to using social media to screen applicants via Facebook, LinkedIn and Twitter.

But, just because using social media to screen applicants is commonly done, it is not as easy to do well.

In fact, if you are not careful, you may be creating liability under a number of different state or federal laws.

28

Examples of Creating Liability While Screening Applicants:

• Civil rights laws (e.g., you learn from social media that a candidate is pregnant and then, when you end up choosing a different candidate, the pregnant applicant claims the decision not to hire her was discriminatory).

• State “lawful consumable products laws” (e.g., you decide not to hire an applicant because they have numerous Facebook posts showing themselves drinking alcohol – and they are over age 21).

• Fair Credit Reporting Act (and state equivalents) (e.g., you pay a third party to compile the social media background information on an applicant but you do not obtain the applicant’s consent or meet the other requirements of the Fair Credit Reporting Act).

• State social media password legislation (e.g., you require that all applicants provide their Facebook login information – including their passwords – so you can see an “uncensored” view of their Facebook activity).


Who is doing the screening? Are you doing the social media screening in-house or are you hiring a third party? If you are doing the screening in-house, can you have the screening completed by a non-decision maker and can you train the screener to filter out protected class information?


How can you avoid these problems? We recommend a thoughtful and consistent social media screening strategy that addresses:

This is harder than it sounds but can provide a good defense to potential discrimination claims. If you hire a third party, ensure Fair Credit Reporting Act compliance. This includes obtaining appropriate consent from applicants and providing required notices to applicants when not chosen for a position because of something that third party reports back to you.

30


What are you looking for?Look for both positive and negative information. More importantly, you should ensure there is some job-related reason for looking for the information. Look for the same types of information for all applicants – be consistent.

Where/how are you searching?What sites are you going to search? For example, do you really have a need to see an applicant’s Facebook page – even if the applicant’s privacy settings are “public” – or can you limit your searching to LinkedIn? What are your search strategies and search terms? Refine those search terms to pick up job-related criteria and avoid other personal information that might not relate in any way to the position you are filling. Use the same process for all applicants. Again, be consistent.

31


When are you searching?Are you conducting the social media screen after receiving an application or resume? After an interview? After a conditional job offer? The later in the process, the less likely you’ll learn protected class information for individuals who do not end up “making the cut.”

As with many things in life, with social media screening – an “ounce of prevention is worth a pound of cure.” Taking the time to be thoughtful about how the screening process will work will go a long way in limiting any potential legal liability.

32

Question Five:How can we protect the online image of our organization?


We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a

person’s experience with a product or service.

ü Consumers frequently use these reviews to evaluate which product, store or organization to use.

ü Job applicants also use review sites in evaluating employment opportunities.

Many times the online review process will actually help, not harm, employers. At other times, unfortunately, employers will be faced with negative online reviews.


Let’s take a hypothetical.

A former employee anonymously posts false and misleading information about one of your managers on Angie’s List. The posts relate to allegedly disrespectful treatment of employees, poor customer care and faulty product features.

You investigate and confirmthat these statements are not true – but what are your options?

You certainly have the right to respond to any negative online post. For example, Glassdoor.com provides companies the opportunity to post “their side of the story.”


Before you decide to react to a bad online review, we recommend that you step back and think about the following:

• Does the post contain sensitive, confidential information? If the answer is yes, then seek legal counsel as you may have a legal obligation to take action (not just to respond to the negative review).

• Is the post believable – that is, will it really hurt your organization? And does the post violate any laws? Many sites will not take down posts unless you can show that there is a violation of law (i.e. release of HIPAA-protected information), or the posts are threatening (think violent) to a particular person or entity, or the like.

• Does the post rise to the level of defamation? If the posts are clearly false statements of fact (not opinion) and are likely to harm your business reputation, then seek legal counsel – but remember, defamation claims can be long fought battles and often hard to win.


For example, in Carlotti v. Petta, an Arizona cosmetic surgeon won a $12 million online defamation suit against a former disgruntled patient.

The disgruntled patient had created her own website and claimed Dr. Carlottiwas not board-certified and under state investigation. The patient also obtained the telephone numbers for the doctor’s patients, called them, and asserted the same allegations.

Records, however, revealed that Dr. Carlottihad received no disciplinary action and was certified by the American Board of Oral and Maxillofacial Surgery.

Yet, despite his victory, as a result of the three year legal battle, Dr. Albert Carlottisuffered deteriorating health, lost hundreds of patients from his practice, and was forced to sell his home.


If a legal battle is not a great option, what else can employers do?

1. Ignore the PostIf the post does not reveal confidential information, does not implicate any laws and is not violent/threatening or extremely harmful, you may want to stop and consider whether any response at all is warranted. Sometimes simply ignoring the post is the better course of action so as not to escalate the situation or draw greater attention to it.

2. Write a Neutral ResponseIf ignoring the post altogether seems like a bad idea – and you feel you have a good story to tell – then consider writing a neutral, objective response. While this might prompt your anonymous poster to rage on, it also might help to even the playing field and show the reading public that the poster’s statements may not be legitimate.


3. Maintain a Positive Online Image Using Social MediaConsider options for increasing your organization’s positive online image. For example, create (and maintain) a Google Plus Account and write about all of the great things your organization does.

Maintain a Facebook or LinkedIn page for the organization, providing useful information about your company, its accomplishments, community involvement, and areas of expertise.

This approach can help leave the online public with a favorable impression of your organization while minimizing the impact of the occasional negative review.


How We Can Help

Fredrikson & Byron provides a variety of social media legal services – available on a flat fee or hourly basis –including:


• Employee and manager training on social media “do’s and don’ts”

• Social media policies and guidelines customized to your organization

• Consulting on proactive social media strategies and goals.

40


Author Contact Information

Teresa ThompsonEmployment Law [email protected]

Norah Olson BluvshteinEmployment Law [email protected]

41



5 Social Media Questions All Employers Should Consider

Social Media

Transcript of 5 Social Media Questions All Employers Should Consider