The Love/Hate Relationship with Social Media
Employers both love and hate social media. On the one hand, it is a great tool to help your business succeed. You can post advertisements and events that very quickly can be seen by hundreds if not thousands of people. With the help of the public, one great post about how great your product is or a fantastic experience with one of your employees, can put your company name out there to people who may otherwise never hear of you. On the other hand, those same social media sites can create huge headaches for a company not only because it allows the public the opportunity to provide immediate (and potentially negative) feedback, but because you have to contend with employee and prospective employee use of social media.
The issue of how social media affects your company is obvious right from the hiring phase. Many employers fail to have a policy in place with regard to whether they search prospective employee social media postings (their public postings only!) and get themselves into trouble for failing to review all prospective employees or none at all. In fact, failing to have a set policy and failing to keep detailed records with regards to any searches actually conducted on prospective employees can lead to an increased risk of discrimination claims and higher costs of discovery in the event litigation occurs due to e-discovery. Not to mention the fact that the information found online might be exaggerated or inaccurate.
Additionally, many employers find themselves in hot water in an attempt to dole out discipline or terminate employees due to employee social media postings or public behavior. There is a lot of misleading, inaccurate and false information online and failing to determine whether the information is factual can be costly. Employers have to walk a fine line to keep the company from getting involved in costly litigation when relying on social media postings or public behavior as the reason for termination or discipline. Having your employment counsel weigh in can save you a lot of time and hassle.
Furthermore, despite the fact that social media has been around in some form for a while now, a lot of employers are still playing catch-up and either have no social media policy at all or have a social media policy that is not effective because it is too broad or too narrow. Many employers are aware of the National Labor Relations Act (“NLRA”), but believe that the provisions only apply to companies with a unionized workforce. This, however, is not the case. The provisions of the NLRA apply to both unionized and non-unionized employers. One of the areas that the National Labor Relations Board (“NLRB”) has been cracking down is in employer discipline of employees for social media postings related to the company and work conditions (for both unionized and non-unionized employers). The NLRB has also been cracking down on social media policies that are considered too broad and prohibit an employee from engaging in “concerted activity.” As you probably already know, one of the protections provided by the NLRA is an employee’s right to engage in concerted activity, which is usually activity for employees’ mutual aid or protection related to wages, terms of employment or working conditions.
In a recent NLRB case (Butler Medical Transport, 365 NLRB No. 112 (July 27, 2017)), a former employee posted on a public Facebook page that she thought she had been improperly terminated. In response to the post by the former employee, a current employee posted that she was sorry to hear that and that the former employee should think about getting a lawyer and contacting the labor board. The current employee was fired for the post suggesting a lawyer. The NLRB determined that the termination of the current employee for suggesting the former employee obtain a lawyer violated the NLRA since the post was concerted as it was made for the mutual aid and protection of employees. Additionally, the NLRB determined that the company’s social media policy, which stated, “I will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image,” was overbroad.
If you do not have a social media policy or you have one that may be too narrow or broad, it is time to update those employee handbooks. Make sure you reach out to a labor and employment attorney first to make sure you are in full compliance with all federal and state laws related to social media or that could impact your policy. If you do not have a set policy with regard to the use of social media in your hiring process, take the time to create one and make sure the people involved in the hiring process are aware and follow the policy as to all prospective employees. Again, make sure you obtain the advice of your labor and employment attorney. There are a lot of laws out there that relate to what can and cannot be done by employers with regard to social media and making sure you are fully compliant is imperative to avoid costly litigation.
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