October 15, 2013 Emily Sneddon Mitchell, Blackstock, Ivers & Sneddon, PLLC 1010 W. Third St. Little Rock, AR 72201 (501) 378-7870 esneddon@mitchellblackstock.com
These materials are for instructional purposes only, and are not to be relied on for legal advice. Legal counsel should always be consulted for specific problems or questions.
Before you fire or otherwise discipline an
employee on the basis of a social media
post, consult your organization’s lawyer
Rules evolving on acceptable workplace
Company reputation
Violations of laws on private information
(medical, financial, passwords)
Source of adverse evidence in regulatory
matters or litigation
NLRB scrutiny of social media policy’s
content and enforcement
DOL scrutiny of hours worked by employees Government employers: First Amendment
rights of government employees
Can an employer require a prospective or
current employee to provide the employer
with user names or passwords to social
media accounts like Facebook and
Twitter?
§ 11-2-124. Social media accounts of current and prospective employees.
(a) As used in this section:
(1) "Employee" means an individual who provides services or labor for wages or other remuneration for an employer;
(2) "Employer" means a person or entity engaged in business, an industry, a profession, a trade, or other enterprise in the state or a unit of state or local
government, including without limitation an agent, representative, or designee of the employer; and
(3)(A) "Social media account" means a personal account with an electronic medium or service where users may create, share, or view user-generated
content, including without limitation: (i) Videos; (ii) Photographs; (iii) Blogs; (iv) Podcasts; (v) Messages; (vi) Emails; or
(B) "Social media account" does not include an account:
(i) Opened by an employee at the request of an employer;
(ii) Provided to an employee by an
employer such as a company email account or other software program owned or operated
exclusively by an employer;
(iii) Set up by an employee on behalf of an employer; or
(iv) Set up by an employee to
impersonate an employer through the use of the employer's name, logos, or trademarks.
(C)"Social media account" includes without limitation an account established with Facebook, Twitter, LinkedIn, Myspace, or Instagram.
(b)(1)An employer shall not require, request, suggest, or cause a current or prospective employee to:
(A) Disclose his or her username and password to the current or prospective employee's social media
account;
(B) Add an employee, supervisor, or administrator to the list or contacts associated with his or her social
media account; or
(C) Change the privacy settings associated with his or her social media account.
(2) If an employer inadvertently receives an employee's username, password, or other login information to the
employee's social media account through the use of an
electronic device provided to the employee by the employer or a program that monitors an employer's network, the
employer is not liable for having the information but may not use the information to gain access to an employee's social media account.
(c) An employer shall not:
(1) Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for
exercising his or her rights under subsection (b) of this section; or
(2) Fail or refuse to hire a prospective employee for
(d) This section does not prohibit an employer from viewing information about a current or prospective employee that is publicly available on the Internet.
(e) Nothing in this section:
(1) Prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or
(2)(A) Affects an employer's existing rights or obligations to request an employee to disclose his or her username and password for the purpose of accessing a social media
account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or
(B) If an employer exercises its rights under subdivision (e)(2)(A) of this section, the employee's username and password shall only be used for the purpose of the formal investigation or a related
The National Labor Relations Board has
taken a keen interest in social media
policies
Looking for violations of Section 7 rights in
the National Labor Relations Act
› Applies to both union and non-union workers › Gives employees right to engage in
‘concerted activities’ for mutual aid and protection
Aggressive attitude toward social media
policies
› Strikes down those that could reasonably be construed to ‘chill’ Section 7 rights
› In May 2012, NLRB reviewed 7 policies and struck down 6 of them.
If social media policy violates Section 7,
and you rely on it to terminate an
employee, employer can have to
reinstate the employee with back wages
and benefits, interest, clean personnel
file, rescission of the social media policy,
prominent posting of a notice from the
NLRB
Instructing employees not to “release confidential guest, team
member or company information” could be “interpreted as
prohibiting employees from discussing and disclosing information regarding their own conditions of employment,” like wages or working conditions.
Telling employees to be sure that their posts are “completely
accurate and not misleading and that they do not reveal non-public information on any non-public site” is an overly broad, improper restriction “because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
Telling employees not to post any information if they are in doubt
about whether the information falls into a prohibited category, and to check with the employer first, is unlawful because “any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act.”
Prohibiting employees from using the Employer’s logos and
trademarks when posting photos or videos is unlawful because “employees would reasonably interpret these provisions as proscribing the use of photos and videos of
employees engaging in Section 7 activities, including photos of picket signs containing the Employer’s logo.”
Telling employees to “[t]hink carefully about ‘friending’
co-workers” is unlawful because “it would discourage
communications among co-workers, and thus it necessarily interferes with Section 7 activity.”
Asking employees to report any unusual or inappropriate
internal social media activity is unlawful because it could be construed as “encouraging employees to report to
Must provide examples of prohibited
behavior
Examples should show employer’s
reasonable justification for the prohibition
› A business reason showing employer does not intent to chill Section 7 rights
NLRB sees generalizations as creating overly
broad and unlawful policies that an
employee could reasonably interpret as prohibiting lawful Section 7 conduct.
› Be Respectful policies. A general rule to be
respectful and ‘fair and courteous in the posting of comments, complaints, photographs, or
videos, could be overly broad. But providing
sufficient examples of plainly egregious conduct can cause the NLRB to conclude that
employees would not reasonably construe the rule to prohibit Section 7 conduct.
“Sufficient” examples included:
avoid posts that "could be viewed as malicious,
obscene, threatening or intimidating" and;
explaining that prohibited “harassment or bullying”
would include “offensive posts meant to intentionally harm someone’s reputation” or “posts that could
contribute to a hostile work environment on the basis of race, sex
› Confidentiality. The rule should provide sufficient
examples of prohibited disclosures (i.e.,
information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or
other internal business-related communications) for employees to understand that it does not
reach protected communications about working conditions.
› Inappropriate Postings. It is okay to prohibit posts
that include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.
A ‘savings clause’ in a social media
policy that says the employer does not
intend its social media policy to restrict
Section 7 rights will NOT stop the NLRB
from finding the policy improper.
Can an employer tell employees not to
‘friend’ other employees?
Probably not
NLRB found unlawfully overbroad a policy telling
employees to ‘think carefully about ‘friending’ co-workers ... on external media sites.’
› Discouraged communications among co-workers and therefore interfered with protected Section 7 activity
What is probably okay:
Prohibition on an employee or supervisor pressuring
another worker to ‘friend’ or otherwise connect on social media
Prohibition on managers making friend requests to a
NLRB case
Cannot prohibit or discourage co workers
from friending each other
Can, in my opinion, tell supervisors that they
are not to initiate friend requests to those they supervise
Policy language can inform employees that
they are never obligated to accept friend requests from anyone at work and that
supervisors have been instructed to not friend employees
Harassment evidence
Evidence of knowledge of protected
Public employee clicks the ‘like’ button
Protected speech under First
Amendment
Government employer could not punish
employee for ‘liking’ campaign of
political rival of employer. (Deputy
sheriffs liked campaign of sheriff’s
opponent.) Bland v. Roberts, No. 12-1671
(4
thCircuit, Sept. 23, 2013).
Discussion of termination
EMT Norvell, off work on worker’s
compensation, used his personal computer to post on the Facebook page of his former work partner Zalewski.
Discussion between Norvell and Zalewski is
joined by at least one other employee and concerns Zalewski’s separation from
employment and comments she
purportedly made to a patient about the condition of the employer’s vehicles.
Novell suggests that Zalewski get a lawyer and
contact the labor board.
Employer’s HR director gets a printed copy of
the FB posts and fires Norvell based on the
posts being a violation of company to not use social networking to discredit the employer or damage its image.
NLRB judge said this was protected activity
under the NLRA and Novell should not have been fired. Butler Medical Transport, LLC and Michael Rice and William Lewis Norvell, Case nos. 5-CA-97810, 5-CA-94981 and 5-CA-97854 (Sept. 4, 2013)
Untrue statements
In the Butler case, NLRB judge found it was
permissible to fire another employee, Rice, on the basis of an untrue FB post that
conveyed the idea that his work vehicle
had broken down for a second time in two weeks and the company did not want to spend money on repairs.
NLRB judge said the posting was not
protected by the NLRA because it was maliciously untrue.
Religion
Disability
Past alcohol or substance abuse
Child-bearing plans
National origin
Race
Politics
First Amendment rights (government
Current illegal conduct
Evidence of deceiving current employer
and violating current employment
policies
In the social media context, repeatedly engaging in any of the following behaviors:
Isolating the targeted persons from opportunities and outings Intrusion on the privacy of others by sneaking around to
overhear conversations, to look at screens on phones or
computers, to look over employees’ desks and personal items, etc. and then sharing the information on social media
Pretending to be friends with a target in order to discover
personal information that will later be used against the target including on social media
Gossiping and asking inappropriate questions, i.e., “So how
much does she make here anyway?” and then sharing the information on social media
Negative comments about the targeted person’s commitment,
abilities, personal life, appearance, financial situation, etc.
Blaming others for mistakes Taking credit for others’ work
Harassment is unwelcome conduct that
is based on:
› race, color, religion, gender, national origin, disability, age of 40 or older, or on genetic information about the person.
Unlawful if enduring the harassment becomes a
condition of continued employment or if the conduct is severe or pervasive enough that it creates a work environment that a reasonable person would
Verbal abuse or yelling.
Consistent angry demeanor when
interacting with targeted persons.
Non-verbal actions that are demeaning,
threatening, humiliating, or that create unnecessary problems for others, i.e., “mistakenly” throwing away another
employee’s lunch; “forgetting” to deliver a message from a spouse.
Interference with or sabotage of others’
Acting in a way to increase the likelihood that
employees will fail in their assignments through a pattern of, for example, changing project
requirements in mid-stream, refusing to provide needed feedback, engaging in constant
criticism that is not constructive and aims to undermine an employee’s belief that success in the task can be achieved, giving impossible deadlines, putting unreasonable pressure on employees, or assigning too much work.
Smartphones or home computers
connected to workplace email
Expectation that email will be checked
outside compensated working hours?
After hours work phone calls
Expectation that employee will take
Requires employer to pay non-exempt
employees minimum wage and overtime
Work not specifically requested by
employer is compensable if employer has actual or constructive knowledge of the work
De minimis work time treated as
non-compensable but email and call times may be aggregated and may equal substantial work time
Limit company issuance of smartphones to
exempt employees.
Prohibit non-exempt employees from
having remote access to work on their personal devices.
If non-exempt employees must have
company smartphones or 24-hour remote access to work on their own devices,
require employees to keep detailed time records and compensate them
appropriately.
Policy on smartphone use for work
purposes
› Disciplinary action for employees who violate
