Social media can be risky business. Whether an organization embraces or ignores social media, it or its employees probably already have a presence on a social network. That simple reality can be costly for an organization without proper measures in place to deal with the risks of social media misconduct. Readers of this blog are familiar with cases where business saw their reputations marred by employees who post embarrassing photos online about work mishaps or found themselves in legal trouble for firing an employee who vented on Facebook about a co-worker.
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Facebook comments about condition of company vehicles are protected under the NLRA; a Facebook rant about fake problems with the company car, not so much – Butler Medical Transport, LLC, 2013 WL 4761153 (N.L.R.B. Div. of Judges)
A recent decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) gives employers insight on when they can and cannot fire an employee for their social media conduct outside of work. Particularly interesting is the fact that this decision involved two separate terminations, one of which the ALJ found illegal, and the other not.
The Norvell Termination
William Norvell worked as an emergency medical technician for an ambulance company, Butler Medical Transport (Butler). While on his personal computer at home, Norvell read a post by a co-worker (Zalewski) on her Facebook page stating that she had been fired. Zalewski attributed the firing to a patient report to management that she complained about the condition of Butler’s ambulances. Several people, including another Butler employee, posted comments inquiring into the incident, to which Zalewski responded with more posts about the patient’s report. Norvell responded to Zalewski with this comment:
“Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
Another person posted a comment suggesting that Zalewski find a job with another ambulance company. After Zalewski asked where the company was located, Norvell posted the location and added, “You could contact the labor board too.”
Butler’s HR director obtained hard copies of these posts, and in consultation with the COO, decided to terminate Norvell. The HR director told Norvell that he was being terminated for violating Butler’s bullet point list of work rules, one of which prohibited employees from using social networking sites that could discredit Butler or damage its image.
The ALJ determined that Norvell’s Facebook posts were protected concerted activity. By advising Zalewski to see a lawyer or contact the labor board, Norvell was “making common cause” with a co-worker about a matter of mutual concern to the employees, i.e., the condition of Butler’s ambulances. Norvell’s posts had protected status even though they were accessible to people outside of the company because Section 7 of the National Labor Relations Act (NLRA) extends to employee efforts to improve the terms and conditions of employment through channels outside of the employer-employee relationship. The ALJ did not find posts to be so disloyal, reckless, or maliciously untrue as to lose their protected status. The termination of Norvell based on his Facebook posts therefore violated Section 8(a)(1) of the NLRA.
The Rice Termination
Another Butler employee, Michael Rice, posted this comment on Facebook:
“Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna buy new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store,”
Butler terminated Rice for making this post. At the trial hearing before the ALJ, Butler produced maintenance records showing that Rice’s vehicle was not in disrepair when he made the post. Rice had also testified at his unemployment insurance hearing that his post referred to a private vehicle rather than a Butler ambulance. There being no evidence to the contrary, the ALJ determined that Rice’s post was not protected by Section 7 because it was maliciously untrue and made with the knowledge of its falsity. As a result, Rice’s termination was not illegal.
Legality of Work Rules
Also under scrutiny was the legality of two of Butler’s work rules, one prohibiting the “unauthorized posting or distribution of papers,” and the other requiring employees to acknowledge that they “will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image.” Butler argued that the rules were not official company policy because they were stated in a bullet point list. The ALJ rejected the argument as making a distinction without a difference. Butler relied on the bullet point rules in terminating Norvell and Zalewski, and new employees were required to acknowledge receipt of the list. As such, employees could reasonably understand that they would be disciplined for failing to follow the rules on the list. The ALJ found that the rules violated Section 7 activity because they prohibited employees from communicating to others about their work conditions.
LegalTXTS Lesson: This case doesn’t break new ground, but it does contain a few important reminders for employers grappling with how far they can go in regulating the social media activity of employees.
1. A policy by any other name … is still a policy. Butler’s failure to convince the ALJ that the bullet point list was not company policy should serve as a reminder that if a company communicates a rule to its employees in writing, expects them to follow the rule, and disciplines them if they don’t, the rule is effectively a policy. It doesn’t matter that the rule appears in a document whose title doesn’t include the word “policy,” or that the wording of the rule is informal.
2. Write it right. Given how easily a supposedly informal rule could qualify as a policy, a company should take care in articulating its work rules in the form of an official written policy. Consult with counsel to make sure the wording doesn’t inadvertently violate the law.
3. Don’t go overboard. The NLRB has consistently frowned upon work rules that flat out prohibit employees from posting content on social media that damages the reputation of their employer, or worse yet, bars them completely from speaking to others about work-related issues, whether on social networking sites or other media. (For examples, see the related posts below). Reject categorical bans on employee speech in favor of rules that focus on creating or avoiding specific results.
4. Context matters. Before disciplining an employee for a social media post, understand the context in which the post was made. Is the post about a work-related issue that other employees have discussed before? Does the post call for co-workers to take action? Asking such questions helps management determine if the post is protected under the NLRA.
NLRB dishes out confusion on social media policies
NLRB sanctions employees who fire employees for online “protected concerted activity”
DirectTV’s work rules invalidated by NLRB
UPDATE: On April 30, 2013, a three-member panel of the NLRB adopted the ALJ’s decision in this case. Read the board decision here (the ALJ decision and the Dish Network social media policy that got invalidated are attached).
The NLRB recently dealt another blow to the ability of employers to prohibit employees from engaging in disparaging speech on social media. On November 14, 2012, an Administrative Law Judge (“ALJ”) of the NRLB issued a decision striking down two rules in Dish Network’s employee handbook dealing with social media use. The first rule prohibited employees from making disparaging or defamatory comments about their employer. The ALJ found that the rule could unlawfully chill employees in the exercise of their Section 7 rights to engage in concerted activity. The second rule prohibited employees from engaging in “negative electronic discussion” during company time. This rule could effectively ban union activities during breaks and other non-working hours at the workplace, the ALJ concluded.
This was not the first time Dish Network’s social media policy came under fire. On May 31, 2012, the Acting General Counsel of the NLRB issued a memo criticizing provisions of actual social media policies. Dish Network was one of the companies whose policies were scrutinized in the memo. But while the memo was merely advisory, the latest ALJ ruling is not.
Recent NLRB rulings like this one leave behind a wake of confusion for employers. Provisions that are commonplace in employee handbooks, like non-disparagement rules, are being invalidated when applied in the social media context. To add to the confusion, the NLRB can seem inconsistent. For example, the May 30 memo approved Wal-Mart’s social media policy, which includes an instruction to “refrain from using social media while on work time” or on company equipment. However, the NLRB struck down Dish Network’s practice of banning social media activity on company time. What’s an employer to do? Few definitive answers are available, but here are a few ideas to help you survive in this uncertain environment:
- Stop treating social media as a novelty. Employers who still regard social media as a frivolous activity tend to use draconian measures (like categorical bans) to regulate it. The reality is that social media has become part of everyday life, nearly as much as cellphones and texting has. The point is not to restrict social media use per se, but to manage the consequences of such use. Which leads us to . . .
- Focus on outcomes. Dish Network very well could have intended its non-disparagement work rule to protect its brand and reputation rather than prohibit employee discussion about their work conditions or compensation. However, the rule did not clearly spell out its objectives. Tell employees the outcomes you want to avoid. If what you want to prevent are discriminatory remarks that create a hostile work environment, say so. This was one of the features of the Wal-Mart policy that the NLRB’s May 30 memo approved. In a section of the policy entitled “Be Respectful,” Wal-Mart states that if an employee decides to post complaints or criticism, they should ” avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.” The policy then listed examples of such conduct, such as “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, disability,religion or any other status protected by law or company policy.”
- Stay positive. Rather than just banning certain kinds of conduct on social media, consider setting affirmative guidelines that employees should adhere to when communicating with others, whether on social media or other communication channels. For example, do you want your organization to be portrayed in a certain way? Then describe the image you would like your employees to convey to others in their communications when talking about the organization.
- It’s not over. The NLRB rulings are not the final word on how broadly employers may regulate social media activity of employees. Although ALJ decisions and even those of NLRB panels are more authoritative than guidance memos, courts have yet to weigh in.
Hawai‘i has jumped on the bandwagon of states (along with 31 other states, according to the National Conference of State Legislatures) introducing legislation to ban employers from requesting access to social media accounts of job applicants. Several bills on the subject were introduced in this year’s legislative session, but the one that appears to have the best chance of becoming law is HB713 H.D. 2 S.D. 1 (HB713). The bill has passed the House and gained the approval of two Senate committees. Next up for the bill is review by the Senate Judiciary Committee. As HB713 gains traction, let’s take a look at what it says and some issues it raises in its current form.
SUMMARY OF HB713, H.D. 2
HB713 would insert a new section into the Hawai‘i statute governing discriminatory employment practices, Hawai‘i Revised Statutes (HRS) chapter 378, part I. The proposed law would apply to both job applicants and existing employees. Employers are prohibited from gaining access to a “personal account,” which is defined as:
An account, service, or profile on a social networking website that is used by an employee or potential employee exclusively for personal communications unrelated to any business purposes of the employer. This definition shall not apply to any account, service, profile, or electronic mail created, maintained, used, or accessed by an employee or potential employee for business purposes of the employer or to engage in business-related communications.
Specifically, an employer may not “require, request, suggest, or cause” an employee or job applicant to: (1) turn over access to his or her personal account; (2) access his or her personal account while the employer looks on; or (3) divulge any personal account. An employer also may not fire, discipline, threaten, or retaliate against an employee or job applicant for turning down an illegal request for access.
There are exceptions, however.
- An employer may conduct an investigation to ensure compliance with law, regulatory requirements, or prohibitions against work-related employee misconduct based on receipt of specific information about activity on a personal online account or service by an employee or other source.
- An employer may conduct an investigation of an employee’s actions based on the receipt of specific information about unauthorized transfer of the employer’s proprietary information, confidential information, or financial data to a personal online account or service.
- An employer may monitor, review, access, or block electronic data (a) stored on an electronic communications device that it pays for in part or in whole, or (b) traveling through or stored on an employer’s network, in compliance with state and federal law.
- An employer may get an employee’s login credentials to access an electronic communications device supplied or paid for in whole or in part by the employer.
- An employer may get an employee’s login credentials to access accounts or services provided by the employer or “by virtue of the employee’s employment relationship with the employer” or that the employee uses for business purposes.
- HB713 specifies that the proposed law is not intended to prevent an employer from complying with other law or the rules of self-regulatory organizations, and that the proposed law should not be construed to conflict with federal law.
OBSERVATIONS AND CONCERNS
Shoulder surfing nixed. The bill appears to make “shoulder surfing” by an employer illegal per se. Suppose an employee tells his boss, “Man, you cannot believe the whales my friend saw on her boat this weekend! She sent me a video of it on Facebook.” Intrigued, the boss says he wants to see the video. The employee obliges by logging on to her Facebook account while her boss watches over her shoulder. Did the boss unlawfully “request” that the employee grant him access to her “personal account”? Technically, yes. Note that HB713 has no exception for voluntary consent of the employee.
“Friending” employees might become illegal. Employers and employees sometimes connect on the same social network. While it isn’t always a good idea for an employer to “friend” an employee, it’s not illegal to do so—unless, perhaps, HB713 becomes the law. HB713 bans an employer from requesting that an employee “divulge any personal account.” Yet, that’s exactly what a friend request does—it requests access to portions of a social media account that can be viewed only by the account owner’s “friends.” The “divulge” language probably was intended to reach situations where an employer demands that an employee hand over access to another employee’s personal account. But as written, HB713’s prohibition against divulging any personal account could be interpreted to apply to innocent “friending.”
The line between personal and private is blurry. In a perfect world, employees would use business social media accounts strictly for business purposes and conduct all of their personal social media activity using separate social media accounts. That’s a best practice, not necessarily reality. The line between personal and business can get blurry in the social media space. It’s not unusual for employees to talk about work or promote their company within their personal social networks. If the employee uses his or her personal account for work purposes, shouldn’t the employer, who might have responsibility for the actions of its employee, be entitled to access the employee’s personal account in certain circumstances? On the other hand, to what extent must an employee use his or her personal account for work-related interactions before the employer should be allowed access to the account? These are difficult issues.
To address the issue, the latest draft of the bill tightens up the definition of “personal account” a bit and specifies that an employer may obtain login credentials from an employee to access “[a]ny accounts or services provided by the employer or by virtue of the employee’s employment relationship with the employer or that the employee uses for business purposes.” This language is somewhat vague. For example, what does “by virtue of the employer’s employment relationship with the employer” mean? It might well be that HB713 is trying to draw artificial distinctions between personal and work social media accounts when in practice, the distinction is sometimes fuzzy at best.
HB713 still has a few hurdles to overcome before it becomes law. Here at LegalTXTS, we’ll keep an eye out for the status of the bill.
Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog. The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer, a pastor, wrote: “I give God 10% Why do you get 18?” and posted it on Reddit. I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.