© 2015 The Texas Lawbook.
By Kerry Curry
(Feb. 13) – Employees don’t always use common sense or restraint when it comes to social media postings, much to employers’ chagrin.
What might have been a quiet work complaint voiced over a beer at the corner pub 10 years ago now has the potential to go viral on Facebook or Twitter. This rising popularity of social media brings significant reputational risks for employers, but they should tread carefully when placing social media limits into a company policy.
The National Labor Relations Board is watching.
“This is a very recent and very disturbing trend for a lot of employers, particularly in Texas, where it is so difficult to organize a union that the NRLB would interject itself,” said Lionel Schooler, a partner in Jackson Walker’s Houston office with expertise in labor and employment law.
It is a very fluid area of the law that employers should watch, legal experts said.
“Given the proliferation of social media, companies can’t be asleep at the wheel,” said Gary Kennedy, former general counsel for American Airlines.
Certainly, companies cringe at derogatory posts about themselves on social media. To stay within the law and out of the NLRB’s crosshairs, however, they may need to chill out.
“Most legal practitioners are telling their clients they have to have a thicker skin on what they are willing to tolerate as far as criticism on social media from their employees,” said Ann Marie Painter, a Dallas partner at Perkins Coie in the firm’s labor and employment practice.
“It feels really bad to think you have to let your employees engage in airing your dirty laundry on social media — it’s so public — but that is the board’s decision,” Painter said.
“I’ve told companies you have to keep a close eye on that (social media) policy,” she said. “You can’t draft it, stick it in your handbook and then forget about it because this is an area where there is a lot of movement.”
Staying out of trouble
It’s common for companies to have social media policies that tell employees they can’t disclose the business’s confidential or proprietary information on social media, but if the policy lacks specifics of what constitutes confidential or proprietary information, that could get the employer into trouble, said Greg McAllister, an associate who litigates employment disputes at Littler Mendelson in Dallas.
McAllister recommends that businesses give specific examples of what constitutes confidential information and make sure that the policy doesn’t have a blanket prohibition that might be construed as limiting employees’ rights under federal employment laws.
“The National Labor Relations Act prohibits employers from engaging in conduct that could reasonably tend to chill employees’ speech regarding wages and (working) conditions,” he said.
Painter said the board also hasn’t taken kindly to social media policies that tell employees they cannot air grievances on social media but must follow the company’s formal grievance policy.
“The board has said maybe you should only say, ‘you are encouraged to use our internal mechanisms for making a complaint’ but not bar someone from raising the issue on social media,” she said.
Painter also advises that companies limit a disparagement prohibition to the company’s “goods and services” because that doesn’t relate to treatment of employees, which would be considered a protected area.
Placing limits on social media posts can be tricky, notes Kennedy. “In my view, if you are working for the company, you should not disparage the company in social media.”
But he adds a caveat.
“You never, particularly from a legal perspective, want to do anything that suggests that you are trying to prohibit people from communicating issues involving company safety matters, or regulatory matters,” Kennedy said. “You always want a mechanism for them to report such issues up the ladder, inside the company.
“You don’t want your policy to suggest that employees can’t bring legitimate issues forward. They should,” he continued. “They shouldn’t do it on social media. What they should do is take it to the company or the appropriate regulatory body if the company doesn’t take appropriate action.”
To be clear, businesses aren’t required to have a social media policy. If a company doesn’t have one, then the National Labor Relations Board can’t criticize it. A business could still get in trouble with the board for its labor actions — with or without a policy.
The risks of monitoring
Because some companies already monitor what is being said about them on social media, it stands to reason that posts by employees — if done without a private filter — might be picked up. No one interviewed for this article said they were monitoring employee posts, although there could be instances where a company might want a closer look at what employees are posting.
“I don’t advise clients to monitor employees’ pages in a Big Brother fashion,” Painter said. She usually only suggests employers review posts when there is a lawsuit or another personnel issue where they believe there is something relevant on social media they should review.
Schooler at Jackson Walker said an employer must follow certain protocols under the Stored Communications Act before they can access private account information that might be stored on a company’s servers. The preferred method is to ask the individual who owns the account for access, he said.
A company can require employees via their personnel policies to participate voluntarily in any investigation, which might include looking at private social media posts, Schooler said. The policy can state that a failure to provide access could result in discipline up to and including termination, he said.
An example of when an employer might want to look at Facebook posts would be when an employee claiming sick leave or bereavement pay is really on vacation or working a second job.
Some companies have asked for passwords to an applicant’s private social media site during the application process, a practice that lawyers interviewed for this article advised against.
Schooler notes that Texas — known for being a pro-business state — remains one of the most tolerant states when it comes to employer oversight of social media usage in the workplace. Employers here are still permitted to request information from employees regarding their social media accounts without restrictions, but nearly 20 other states have passed laws that prohibit employers from seeking access to social media sites that are private.
Legal experts interviewed for this article said it is more common for employers — formally or informally — to see what they can find about a job applicant through public social media channels.
Employers who do that, however, run the risk of learning protected information about a job applicant, such a person’s age, marital status, race, religion or disability. An employer might end up finding out information it would never ask in an interview, such as whether an applicant is pregnant or that the company would have to provide accommodations for a disability. Information found on the Internet may be out of date or wrong.
Painter advises that companies extend a job offer and make it contingent upon passing a background check instead of relying on Internet information in the hiring process.
A few tips
Decide whether you want a restrictive or a permissive policy, legal experts advise. Dell, for example, prefers a more permissive policy.
“We did not want to restrict our employees on social media,” said Laura Thomas, who manages Dell’s corporate blog and main Twitter account from Dell’s Austin-area headquarters. “We instead focus on training employees on social media. Things about being honest and following our code of conduct, which existed at Dell before social media ever did.”
The company’s social media training reinforces that Dell expects employees to protect confidential information and that they should identify themselves on their social media accounts as Dell employees.
“Employees are likely to be out there on social media anyway,” Thomas said. “Why not capitalize on that? Why not leverage that as a strength and not a weakness?”
The company also posts its social media policy on its website for all to see.
Plano-based InTouch Credit Union prefers a more restrictive social media policy because it is a financial institution and the safe-keeper of people’s money and financial information, said Chris Carlson, the credit union’s general counsel.
The policy addresses confidentiality, proprietary information and who is authorized to speak on behalf of the credit union. It encourages people who aren’t authorized to talk on behalf of the credit union to make it clear in any social media posts about the credit union that the posts are personal opinions. The credit union also warns people to make sure their posts are legal and accurate.
“Don’t say, as an example, the credit union is leaving the Michigan market if that is not the case, or that we are losing money if that’s not the case or that we are ceasing to do mortgage loans if that is not the case,” Carlson said.
“If you are going to talk about the credit union in your personal posts then you are on your own. You are responsible for anything that results from doing that. If someone gets upset and sues you, we are not indemnifying you. We don’t have your back.”
Sammie Cantrell, senior vice president of HR and chief administrative officer at InTouch, said the policy gives plenty of specifics but it stops short of prohibiting disparagement of the company.
“We acknowledge that you may use your site to express views and personal opinions. We do state that you may not use your personal site for the purposes of threatening, harassing or discriminating against other employees,” she said.
Carlson said the credit union monitors what is said about it, which is recommended by its regulator, to protect its financial stability. The monitoring may occasionally pick up something that was posted by an employee.
Carlson said the policy was reviewed last year in light of recent NLRB rulings, including a review by outside counsel. The credit union, he said, works hard to have an engaged workplace with good communication so employees don’t feel the need to air grievances on social media.
“We try hard not to overreact,” Carlson said. “You will always have somebody who does something just a little weird, and that seems to happen more often on social media. We are reading about it in the media almost every day — about someone who posts something silly.”
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