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Should Big Brother Be Watching? Social Media and Current Employees

Should Big Brother Be Watching? Social Media and Current Employees

In our last employment post, we discussed the benefits and pitfalls of using social media in the hiring process. This post considers how the role of social media changes once an employee has the job. How far can an employer go to control and monitor an employee’s social media posts? Or perhaps more importantly, how far should it go?

A primary concern for employers is how to prevent employees from posting negative comments about the company. One employee tweet about an “unfair” employer can reach thousands of people in seconds, and quickly tarnish a reputation a company worked years to build. The first line of defense in this battle is the employee handbook. But recent administrative decisions show that blanket prohibitions on negative statements are not the answer. In the Echostar case, an employer maintained a social media policy preventing employees from making “disparaging or defamatory comments” or “undermining” the company via social media. In finding the policy violated the National Labor Relations Act (“NLRA”), the presiding administrative judge determined that the broad language could curb protected criticism of the company. The judge ultimately required the company to withdraw the policy. Similarly, in Costco Wholesale Corp., the National Labor Relations Board struck down a company’s policy against posting communications that “damage the company.” The policy limited employees’ ability to protest their treatment by the employer, and thus, violated the NLRA.

There are no magic words for an enforceable social media policy; however, the NLRB has issued some guidance on what is acceptable. A good place to start is a 2012 advisory memo, stating that it is a lawful policy to require an employee to post a disclaimer explaining that employee was sharing her own views.

While crafting an enforceable social media policy is key, a wise employer will not stop there. The company must also decide if and how management will utilize social media. When it comes to “monitoring” employees on social media, states are increasingly cracking down on how far employers can go. By 2014, over 30 states had either enacted or had pending legislation that banned an employer from requiring an employee to turn over her username and password for social media accounts. Many of these states similarly bar an employer from forcing an employee to add the employer as a contact.

But even when monitoring is “legal,” it can raise problems. Consider the following situation. In Minnesota, it is illegal to terminate an employee for lawful off-duty conduct unless the restriction is related to her employment. A Minnesota employee takes a trip to Colorado, where marijuana use is legal. The employee posts a picture of herself using marijuana on Facebook, where she is friends with her supervisor. Weeks later, the employee is terminated. Even if the termination is completely unrelated to the marijuana use, the employee may still have a colorable argument that she was fired for lawful off-duty conduct based on that Facebook picture. The issue may be easily decided at summary judgment, but the company wasted valuable time and resources fighting a meritless claim all due to one social media post.

Further complicating the issue, one federal court has signaled that in some situations, there may be an affirmative duty to monitor employees’ social media accounts. In Howard v. Hertz Corporation, a Hawaii federal court denied Hertz’s motion to dismiss plaintiff-employee’s claims for negligent supervision, retention, and training where a coworker posted harassing messages directed at the plaintiff. Plaintiff alleged that Hertz knew the coworker had previously posted hostile and harassing content on Facebook about others, and therefore, “should have known of the need to exercise greater control” over the coworker. The court did not explain what “greater control” might be necessary, but it seems to leave the door open to an argument that Hertz had a duty to monitor the coworker’s social media posts.

Bringing the matter closer to home, Georgia law allows a claim for negligent supervision where the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior. In a 2008 case, the Georgia Court of Appeals affirmed a jury verdict in favor of an employee harassed by a coworker. The court found that the employer knew the coworker previously harassed other employees, and therefore, should have known coworker posed a risk of committing similar harassment against plaintiff-employee. In that case the harassment occurred in a physical office, but would the result have been different had it occurred online? The question of how far an employer must go to supervise its employees’ online behavior remains unclear.

It may feel like the decks are stacked for the employee when it comes to social media, but employers are not without their victories. One particular area where employers have benefited from social media is in defeating employee claims under the Family and Medical Leave Act (“FMLA”). In several cases, employers have used employee’s own posts to defeat FMLA retaliation and interference claims. Most notably, in 2012 the Sixth Circuit affirmed summary judgment for an employer that terminated employee after she posted pictures of herself drinking at a festival while purportedly out on FMLA leave. The court relied heavily on the pictures in finding that the termination was not retaliatory, but rather was based on employee’s fraudulent behavior in taking FMLA leave.

The intersection between social media and employment will continue to create novel legal problems. Hudson Parrott Walker will monitor these matters and report on new developments.

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