A Las Vegas firefighter draws the scrutiny of city officials, the police and the media after she posts on Facebook that she wants to shoot a county commissioner in the groin.1 A restaurant in North Carolina fires a waitress for calling customers “cheap” on her Facebook page.2 A mascot for the Pittsburgh Pirates baseball team is fired (and later rehired) after he posts a comment critical of team management on Facebook.3
Incidents such as these, all occurring within the span of just a few months in 2010, demonstrate that the headaches and legal issues for employers arising from employee use of social media are not merely hypothetical. The combination of employee ingenuity and constantly evolving technology make it imperative for companies to develop, implement and update sound policies and procedures that address employee use of social media such as Facebook, Twitter, MySpace, LinkedIn, YouTube and blogs.
To assist employers in navigating the myriad federal and state laws that impact workplace social media policies, consider the following, non-exhaustive list of suggestions.
Considerations for Social Media Policies
• Develop your own policy; don’t just “cut and paste.”
A workplace social media policy must be tailored to your company’s individual operations and needs. While some companies fully embrace social media and encourage their employees to go online to discuss and promote their companies’ products and services, other companies want more control over their image and message and are uncomfortable being discussed online. In drafting a social media policy, companies must first involve their key decision makers to determine the company’s philosophy on what constitutes appropriate (and inappropriate) uses of social media. Policies should specify what is permitted, what is prohibited and what is required both inside and outside the workplace.
• Inform employees that the company has legitimate concerns and interests in employee online communications and that a violation of the employer’s policies will result in disciplinary action or termination.
Require employees to sign an acknowledgement that they have received the social media policy and then retain the acknowledgements in individual employee personnel files. Employees may have the misimpression that conduct occurring outside of the workplace is none of their employer’s business. However, such conduct can (and often does) spill over into the workplace, creating embarrassment and actual or potential liability and regulatory problems for the employer, and damaging the employer’s reputation or other business interests. Accordingly, employers do have a legitimate interest in regulating such conduct, and employees need to be aware that the inappropriate use of social media will have adverse consequences on their employment. Documentation of an employee’s receipt of the social media policy will demonstrate that the employee was fully informed of the employer’s expectations and will be useful in defending against subsequent claims.
• Tell employees to refrain from engaging in illegal or embarrassing conduct.
The social media policy should remind employees that they are prohibited from engaging in illegal activity and that they may be held civilly or criminally liable for illegal online content. Including this admonition in a social media policy is particularly important for gaming licensees, who are subject to discipline and whose licensing status may be jeopardized if an employee engages in illegal activities or other inappropriate conduct that brings disrepute to the licensing jurisdiction or the industry.4
• Remind employees to protect their own privacy and to respect the privacy of others.
The social media policy should prohibit employees from posting photographs of company operations, co-workers or customers without the consent of the company or the individual in the photograph. Employees further should be reminded to use appropriate privacy settings on their own personal social media accounts (such as a Facebook page) so that only their “friends” can view their online content. Publicly posted pictures of a visibly drunk company executive engaging in acts of debauchery not only could be damaging to a company’s reputation but could also have serious legal and regulatory implications.
• Prohibit employee use of social media during company time and with company resources, unless an employee’s job duties require it (for example, a nightclub host “tweeting” about guest appearances and club events).
Chances are your company’s policies prohibit or severely restrict employees’ personal use of company computers or spending work time on personal pursuits. Make sure employees know these restrictions extend to their use of social media. Be clear that the policy’s provisions also apply to conduct that takes place off duty and/or on equipment other than the employer’s equipment. The reality, however, is that from a liability and a public relations perspective, it may make little difference whether an employee’s unlawful sexual harassment of a co-worker or an employee’s disparagement of a competitor took place on or off the clock.
• Tell employees they do not have an expectation of privacy or “free speech” rights in their online postings and inform them that the company actively monitors online content affecting the company.
It is necessary to disabuse employees of the notion that an employer may not or will not view their online postings. Employees often operate under the misconception that their online postings on social media sites are private or that they have constitutional “free speech” rights in comments they post online, thereby protecting them from adverse employment consequences. However, in most states, including Nevada, such constitutional protections extend to only public, not private, employees. In fact, employment “at will” is the rule in most jurisdictions and, subject to certain contractual, statutory or common law exceptions to at-will employment, employers enjoy broad latitude in disciplining or terminating employees for inappropriate use of social media while at work and while off duty.
A few caveats to the above generalities: While employers generally can and often do discipline or terminate employees for online behavior, employers do not have an unlimited license to snoop. Certain statutes place restrictions on employer monitoring of employee online activities. For example, employees have successfully alleged violations of the federal Stored Communications Act (SCA)5 based on their managers obtaining unauthorized access to online employee-only chat rooms or websites.6 Likewise, in either a union or non-union setting, employees may be able to allege unlawful surveillance in violation of the National Labor Relations Act (NLRA) if an employer monitors its employees’ social media postings for the purpose of obtaining information about union activities.7
• Prohibit derogatory, defamatory or disparaging communications about the company or its employees, but include a disclaimer that the policy is not intended to interfere with or restrict employee rights under the NLRA or other applicable law.
Generally, an employer may restrict employees from posting derogatory, defamatory or disparaging comments about the employer on social media sites. However, an overly broad social media policy has the potential to violate the NLRA if it prohibits or deters non-supervisory employees from engaging in concerted activities protected under the NLRA (for example, discussing wages, workplace safety or other terms and conditions of employment with fellow employees).8 Before drafting social media policies, employers should familiarize themselves with recent guidance from the National Labor Relations Board on permissible content of such policies.9
In addition to the NLRA, there are several other federal and state laws that may limit an employer’s ability to terminate or discipline an employee for the content of certain online communications. For example, Nevada law provides protection for employee political activities10 and an employee’s lawful use of a product outside work during non-working hours.11 Statutes such as state and federal occupational safety and health laws and the Sarbanes-Oxley Act of 200212 further provide protection for certain “whistle-blowing” activities. In light of these and other potential statutory restrictions, employers should include in their social media policies appropriate disclaimer language, making it clear that the policy is not intended, and will not be applied, to interfere with or restrict employee rights under the NLRA or other applicable law.
• Inform employees that all other company rules of conduct apply to their use of social media.
Perhaps it is the perceived anonymity of the Internet that makes employees do and say things online that they would never do in person. But whatever the reason, the social media policy should specify that the employer’s regular rules of conduct apply to social media activities. For example, just as making sexual comments to another employee or threatening workplace violence are prohibited in person; such conduct is also prohibited online.
• Tell employees that the employer’s trade secrets and confidential or proprietary information must not be disclosed via social media and, similarly, employees may not disclose a customer’s or other business partner’s confidential information entrusted to the employer.
Lawsuits over the unauthorized online posting of copyrighted material are becoming more commonplace,13 as are disputes involving the disclosure of trade secrets and other confidential and proprietary business information. As a recent Minnesota case14 demonstrates, even an employee’s inadvertent disclosure of a company’s customer information in social media is cause for concern. In that case, a defendant is asserting that an employer’s customer information was no longer confidential (and, therefore, not entitled to trade secret protection) because an employee’s contact list had been placed in the public domain on the professional networking site LinkedIn.15
• Prohibit employees from using the company’s name, logo or slogans without permission and require employees to disclose their affiliation with the company if communicating about the company’s products or services or its competitors.
In an effort to ensure compliance with 2009 Federal Trade Commission guides addressing “endorsements and testimonials in advertising,” 16 a company’s social media policy should expressly prohibit employees (and others associated with the company, such as independent contractors and third-party vendors) from touting the company’s products, services or prices without truthfully disclosing their connections to the company. Under the guides, the FTC may take corrective action against a company if an endorser makes deceptive, false or unsubstantiated statements about the company or if an endorser fails to disclose his or her “material connection” to the company.17
Accordingly, conduct prohibited under the social media policy should encompass, among other things, an employee posing as a disinterested customer to post favorable reviews of the company on a blog or sending out “tweets” about the company under a fake name.
• Consider discouraging or prohibiting supervisor/subordinate “friendships” and “friend” requests.
Social media “friendships” between supervisors and subordinate employees are a potential legal nightmare for employers and should be discouraged or prohibited. Here are just a few possible scenarios for employer liability based on supervisor/subordinate social media “friendships:” 1) an employee claims he is the victim of illegal discrimination and, to bolster that claim, states that his supervisor had knowledge of his membership in a protected classification (for example, his religion or disability) via the employee’s postings on his Facebook page; 2) an employee claims she is the victim of sexual harassment by her supervisor after the supervisor posts sexually offensive comments and photos online; 3) an employee claims that the employer, through its supervisor, had actual or constructive knowledge of a co-worker’s harassment based on the accused co-worker’s inappropriate social media postings; 4) a supervisor’s decision to send “friend” requests to some subordinates but not others leads to allegations of discrimination, favoritism or retaliation.
As the examples in this article demonstrate, a well-crafted social media policy is now an essential part of an employer’s toolkit. Before implementing your social media policy, be sure to consult with legal counsel who can guide you through the latest legal considerations and ever-changing landscape in this evolving area.
1 Joe Schoenmann, “County commissioner named in threat on Facebook,” Las Vegas Sun, April 9, 2010.
2 Eric Frazier, “Facebook Post Costs Waitress Her Job,” Charlotte Observer, May 17, 2010.
3 Mike Dodd, “Pirates fire outspoken pierogi,” USA Today, June 20, 2010.
4 See e.g., Nevada Gaming Commission Regulation 5.011.
5 See 18 U.S.C. § 2701(a).
6 See, e.g., Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D. N.J. Sept. 25, 2009); Konop v. Hawaiian Airlines Inc., 302 F.3d 868, 890 (9th Cir. 2002).
7 See e.g., Konop, 302 F.3d 868; Sears Holdings (Roebucks), Case No. 18-CA-19081, NLRB Advice Memorandum (12/4/09), 2009 WL 5593880.
8 See 29 U.S.C. § 157; 29 U.S.C. § 158(a)(1)-(3).
9 See Sears Holdings (Roebucks), Case No. 18-CA-19081.
10 See NRS § 613.040.
11 See NRS § 613.333.
12 15 U.S.C. § 7201 et seq.
13 See, e.g., Steve Green, “2 lawsuits over R-J copyrights lift total to 100,” Las Vegas Sun, August 19, 2010.
14 TEKsystems Inc. v. Hammernick, Case 0:10-cv-00819-PJS-SRN (D. Minn., Complaint filed March 16, 2010).
15 Id. (Answer filed April 7, 2010).
16 See “Guides Concerning the use of Endorsements and Testimonials in Advertising,” 16 C.F.R. Part 255.
17 16 C.F.R. § 255.5.
Laura Thalacker is a partner in Lionel Sawyer & Collins’ Las Vegas office, where she focuses on representing employers in employment law matters. She provides counseling and training to clients on social media issues in the workplace. Thalacker serves as Vice Chair/Chair-Elect of the Labor and Employment Section of the State Bar of Nevada. She can be reached at lthalacker[at]lionelsawyer.com.
Kelly Kichline is an associate with Lionel Sawyer & Collins where her practice focuses on representing employers in labor and employment matters in state and federal court and before administrative agencies and advising clients on prevention of claims. Kichline is a certified Senior Professional in Human Resources (SPHR).