The ever-increasing connection between an individual’s use of social networking media and their job generally presents two major risks for employers: (1) the potential for violating the law by firing or taking adverse action against employees based on their use of social media; and (2) legal liability arising out of employee social media postings relating to your company or their employment. But the line between protecting a company’s rights and violating an employee’s right to privacy is not clear. A recent settlement between the NLRB and American Medical Response of Connecticut Inc. (“AMR”) arising out of AMR’s termination of one of its employees due to negative comments the employee posted on Facebook highlights this fact.
The NLRB sued AMR last year, arguing the employee’s negative comments were protected speech under federal labor laws. AMR claimed it fired the emergency medical technician because of complaints about her work.  Under the settlement with the NLRB, AMR agreed to change its blogging and Internet policy that barred workers from disparaging the company or its supervisors. AMR also will revise another policy that prohibited employees from depicting the company in any way over the Internet without permission. Both policies interfered with legal protections that allow workers to discuss wages, hours and working conditions with co-workers, the NLRB said.
What can be learned from this case? In considering whether to discipline an employee for posting statements about your company via social media, employers must first ask some questions to avoid the potential for liability under the NLRA. First, employers should consider whether the post represents “concerted activity” between employees: Is the message directed at one or more other employees? Does the post suggest that employees take some action to improve working conditions? Is the post from a “spokesperson” employee regarding a common concern? Is the post summing up, discussing or “logically growing out of” a union or employee group activity? If the answer is “yes” to any of these questions, that post is likely “concerted activity” and protected under the NLRA.
Second, employers should consider whether the post is “for the mutual aid and protection” of employees: Does the post discuss working conditions or some tangible workplace issue? Does the message relate to wages, hours, schedules, the physical environment of the workplace, dress codes or working assignments? Does the message intend to alert the general public about some potential health or safety violation at the workplace? Does it urge co-workers to vote in favor of laws affecting employment, criticize or urge opposition to the employer’s implementation of new employment policies? Again, if the answer is “yes” to any of these, you are dealing with potentially protected conduct.
In addition to concerns about compliance with the NLRA, several states have laws that protect individuals from suffering adverse employment actions based on lawful off-duty conduct. Arguably, such off-duty conduct could protect a supervisor who “friends” a subordinate on Facebook and discusses work issues. Thus, if you are going to have social media policies, you need to think about what you are going to allow or not allow.
Other risks associated by employee use of social media include, but are not limited to, employees making defamatory statements, the unauthorized disclosure of company trade secrets and confidential information, disclosures that could violate SEC rules, statements that could amount to discrimination and harassment, and whistleblower claims to name a few.
Practical Tips for Employers
- Implement social media policies limiting what employees can post about work on social networking sites to reduce potential for legal liability.
- Reference social media use in harassment policies.
- Employers who do want to review social media prior to making employment decisions should have a policy governing such use.
- Enact policies that make clear that employees should have no reasonable expectation of privacy on the organization’s computers, email systems and internet connections.
- Make sure that any discipline issued for use of social media is compliant with state law as some states prohibit discipline for legal off-duty activity.
- Use non-disclosure agreements and mention social media in the agreements.
- Require employees to use disclaimers when posting messages that states that they are not speaking on company’s behalf.
- Educate and train employees about the social media policies.
 This action is styled: In re American Med. Response of Connecticut, Inc., Case No. 34-CA-12576 (Oct. 27, 2010).
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.