Social Media: Balancing the Rights of Employers and Employees
Pilar Morin and Elizabeth T. Arce are attorneys with Liebert Cassidy Whitmore, a California labor and employment law firm representing public agency management. Morin can be reached at firstname.lastname@example.org. Arce can be reached at email@example.com.
Employees’ personal use of social media — such as Facebook, Twitter and blogs — is creating significant challenges for employers. Whenever society embraces new technology it takes some time for the law to catch up. This is certainly the case with social media. As a result, private and public agency employers have been scrambling to develop guidelines to regulate employee personal use of social media that hurts the employer’s business interests.
When drafting and implementing social media guidelines, employers should keep two things in mind: employees’ rights to discuss the terms and conditions of their employment, and employees’ electronic privacy rights.
Employees’ Rights to Join Together
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to “engage in … concerted activities for the purpose of mutual aid or protection.” In other words, this provision protects employee rights to act together to improve their working terms and conditions, including wages and benefits. The NLRA applies to both unionized and non-unionized employees. Several recent National Labor Relations Board (NLRB) cases against private employers highlight how the protections of section 7 apply in the context of social media:
- Lee Enterprises, Inc., dba Arizona Daily Star,1 involves a reporter who was terminated because he posted sarcastic and unprofessional messages on Twitter. The employer did not have a social media policy, but told the employee not to tweet about “anything work related.” The employer terminated the reporter after he continued to make inappropriate comments on Twitter about public safety issues he was covering. On April 21, 2011, the NLRB’s General Counsel Division of Advice opined that the complaint should be dismissed because the employee’s Twitter communications did not involve the terms and conditions of his employment or concerted activity.
- Hispanics United of Buffalo2 concerns a complaint alleging that a nonprofit fired five employees after they engaged in concerted activity discussing the terms and conditions of their employment by criticizing workload and staffing issues on their Facebook pages.
- Knauz BMW3 involves a complaint against a car dealership for firing an employee after he posted photographs and comments on Facebook criticizing a promotional event due to his concerns about the effect it would have on commissions. The complaint alleges that the communications were protected because it pertained to the terms and conditions of employment and involved other employees.
- American Medical Response of Connecticut, Inc.,4 concerns a complaint against an ambulance company, American Medical Response of Connecticut (AMR), for firing an employee after she posted vulgar and negative comments about her supervisor and employer on her Facebook page. The company terminated the employee on the grounds that her Facebook postings violated the company’s blogging and Internet posting policies. Ultimately, AMR agreed to revise the broad language of its policy to ensure it did not improperly restrict employees from discussing their wages, hours and working conditions with co-workers on their social media pages. AMR also agreed not to discipline employees for posting such comments.
These cases provide the following guidance to employers.
- Employers should include a statement in their social media policy that informs employees that the policy is not intended to and will not be applied to improperly restrict employees from engaging in concerted activity, including discussing their wages, hours and working conditions with other employees.
- The language of the policy should not be overly broad. For example, language that prohibits comments that “disparage” the employer may be construed to discourage employees engaging in protected activity, such as discussing their wages and other work conditions.
- Employers should keep in mind that language used in the context of an employee’s discussion of the terms and conditions of his employment with other employees will likely be protected, even when some of the language used may be angry, vulgar, derogatory or otherwise unprofessional.
Despite an employee’s right to discuss wages and working conditions under the NLRA and California Labor Code sections 232 and 232.5, public agency employers can still effectively draft a social media policy that balances the rights of both the agency and employee. Properly worded policies may set limits on an employee’s personal social media conduct to protect the public agency’s legitimate business interests, as long as that conduct is unrelated to employee efforts to join together to discuss the terms and conditions of their employment. Courts have recognized exceptions to section 7 protections when the employee’s statements breach confidentiality or are malicious, reckless or false. Consequently, social media policies may prohibit employees from posting statements on personal social media sites that are untrue and/or disclose confidential or proprietary employer information. Such statements can undermine the agency’s mission, purpose and reputation. Public agencies may also discipline employees for social media use that violates other policies, such as discrimination, harassment or workplace violence policies.
Employee Privacy Rights in Stored Communications
Under the Stored Communications Act (SCA), it is illegal to intentionally:
- Access without valid authorization a facility through which an electronic communication service is provided; or
- Exceed an authorization to access that facility, thereby obtaining an electronic communication while it is in electronic storage in such a system.5
The SCA also prohibits “electronic communication service providers” from divulging, either voluntarily or in response to a subpoena, private messages communicated via social networking sites that are not readily accessible to the public.6
An employer should follow these guidelines to avoid violating the SCA:
- Employers should view only publicly posted messages on social media sites;7
- Employers should never “borrow” the password of a third-party friend or contact of the employee to gain access to a social media page. Only the user can provide such authorization;8
- Employers should not use false pretenses or false identity to gain access to employee social media pages;
- Employers can view material accessed by employees and captured on the employers’ network if they have an electronic communications use policy that puts employees on notice for such monitoring.
A social media policy is an important tool that allows all employers, including public agencies, to protect their brand, reputation and mission. Employers can manage the risks and challenges arising from employee use of social media by adopting a policy, regularly auditing and updating the policy, and providing training to their employees about responsible social media use.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
Readers seeking related information may find the following articles helpful.
1 Lee Enterprises, Inc., d/b/a Arizona Daily Star, NLRB Case No. 28-CA-23267
2 Hispanics United of Buffalo, NLRB Case 03-CA-027872
3 Knauz BMW, NLRB Case 13-CA-046452
4 American Medical Response of Connecticut, Inc., NLRB Case No. 34-CA-12576
5 18 U.S.C. §2701(a)(1)-(2).
6 Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F.Supp. 2d 965, 976-977.
7 Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F.Supp. 2d 965, 976-977.
8 Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) 302 F.3d 868, 879-80 (Employer violated the SCA after a supervisor gained unauthorized access to a secured website created by an airline pilot for purposes of union organizing by using another employee’s password and identity).