Surprising Traps of Social Media in the Workplace

Surprising Traps of Social Media in the Workplace

Employee activity on social media continues to skyrocket, and each day more new social media platforms and apps are released to the public. Employers can no longer turn a blind eye to what was once thought of as a personal recreational activity. These days, employees are posting on Facebook details about their jobs, supervisors and customers, along with their daily activities, meals and vacations.

Some savvy employers have truly embraced the concept of social media in the workplace by encouraging their employees to harness the power of social media for the company’s benefit—so called “employee advocacy programs.”

While the law regarding social media use in the workplace is slow to adapt, here is a look at some of the not-so-obvious traps of social media in the workplace.

Social Media Policies: Being Reasonable May Not Be Enough

Generally, it is a good idea to have a social media policy. Additionally, other related policies, including anti-harassment, confidentiality, use of mobile devices and workplace privacy should be updated to add social media-related components.

However, having what appear to be “reasonable” policies may not be enough. Examine, for example, the following sample policies:

  • “You may not make false or misleading representations about your credentials or your work.”
  • “Be respectful to the company, other employees, customers, partners and competitors.”
  • “Don’t pick fights online.”
  • “Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.’”

These seemingly reasonable employer policies were found to be unlawful by the General Counsel of the National Labor Relations Board (NLRB).1 Certainly every attorney advising employers on social media and employee handbooks should review the General Counsel’s memo.

It explains that employees have a “Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees … Thus, an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment—such as wages, hours or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses ‘employee’ or ‘personnel’ information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications.”2

Conversely, “broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.”

So, what does this mean? Below are examples of unlawful and lawful policies on maintaining confidentiality, according to the General Counsel:

  • You must not disclose proprietary or confidential information about [the employer, or] other associates (if the proprietary or confidential information relating to [the employer’s] associates was obtained in violation of law or lawful company policy). UNLAWFUL
  • Discuss work matters only with other [employer] employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places. UNLAWFUL
  • Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers. LAWFUL
  • Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [employer] is cause for disciplinary action, including termination. LAWFUL

The “lawful” policies are ones, according to the General Counsel, that: (1) “do not reference information regarding employees or employee terms and conditions of employment; (2) although they use the general term ‘confidential,’ they do not define it in an overbroad manner; and (3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications.”

Consequently, proactive employers will review their policies in light of Section 7 of the National Labor Relations Act, and hope to avoid a complaint with the NLRB (which has been the most active government agency concerning the topic of social media in the workplace).

Terminating Employees for Social Media Activity Is Tricky

On October 25, 2011, Hernan Perez, an employee of Pier Sixty, was working as a server at a fundraising event. During the cocktail and dinner service, Perez felt that he and other employees had been subjected to disrespectful treatment by one of their managers. Perez took a break to calm down, and went outside. During his break, Perez used his iPhone to post the following on Facebook regarding his supervisor (censored for this post):

“Bob is such a NASTY MOTHER F—– don’t know how to talk to people!!!!!! F— his mother and his entire f—— family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Perez’s Facebook friends included a few of his coworkers, and current and former coworkers commented on the post. Perez made his post two days before the union election, and removed it the day after the election. After an investigation, Pier Sixty terminated Perez’s employment, saying that Perez had violated company policy by posting his offensive comments.

Naturally, Perez filed a claim with the National Labor Relations Board. And, naturally, on March 31, 2015, the NLRB sided with the employee and determined that Pier Sixty violated Perez’ rights when it fired him.3

Cases like this one involving Pier Sixty really put employers in a quandary. Here, the NLRB stated that “[a]lthough we do not condone Perez’s use of obscene and vulgar language in his online statements about his manager, we agree that the particular facts and circumstances presented in this case weigh in favor of finding that Perez’s conduct did not lose the Act’s protection.” This is so even though the dissent characterized Perez’s Facebook comments as “fraught with insulting and obscene vulgarities.”

The NLRB reached this conclusion by focusing on several factors. One such factor was that it found that Pier Sixty had not disciplined other employees in the past for language similar to that used by Perez, and noted that such remarks were “a daily occurrence in [the] workplace, and did not engender any disciplinary response.”

The evidence demonstrated that since 2005, Pier Sixty had “issued only five written warnings to employees who had used obscene language, and there is no evidence that [Pier Sixty] has ever discharged any employee solely for the use of such language.” As a result, according to the NLRB, Perez may not have known that his use of such language would result in his termination.

Additionally, since Perez was allegedly (by stating “Vote YES for the UNION!!!!!!!”) posting in order to help protect the rights of his fellow employees, the NLRB found that his post was an example of protected concerted activity under the National Labor Relations Act.

Finally, the NLRB examined Pier Sixty’s policies. The NLRB noted that Pier Sixty’s policy on “Other Forms of Harassment” did not prohibit vulgar or offense language. And, Pier Sixty did not claim that Perez’s post on Facebook was directed at any protected characteristic listed in the policy.

What Should Employers Do?

Employers must act to avoid these situations and being overruled by the NLRB. Here are a few steps to take:

  1. Update or create policies. These policies should be as specific as possible, and should not contain a blanket prohibition on employee use of social media, except when the employee is expected to be working. They could prohibit the use of vulgar language and profanity, and should be created or updated along with any anti-harassment and anti-bullying policies. Note, however, even with these tightly worded policies, the NLRB and/or courts may still determine that such policies are in violation of the National Labor Relations Act.
  2. Train employees. Having policies and a handbook is a great start. However, they only get you so far. Employees must be trained to understand what these policies mean. Supervisors and managers must learn the same, and how or when to enforce such policies. Furthermore, they must know when to discipline employees and what types of discipline are at their disposal. Alternatively, they need to know enough to know when to refer a situation to the Human Resources department.
  3. Be consistent. The NLRB was unimpressed by Pier Sixty’s decision to terminate Perez when Pier Sixty had not terminated the employment of any other employee before for using such language. It is unknown if the NLRB would have ruled differently if Pier Sixty had terminated other employees for offensive or vulgar language, but it likely would have helped Pier Sixty if Perez was the fifth employee, and not the first employee, to have been terminated for these reasons.
  4. Scrutinize terminations. Before terminating an employee for their posts on social media, employers should be extremely careful to analyze their decisions. On the one hand, if the employee has revealed confidential or trade secret information, then termination may be very clear. On the other hand, if the employee is venting about work conditions, even using profanity, the employer must analyze whether such comments could be considered protected concerted activity.

[1] Memorandum GC 15-04 of the General Counsel of the National Labor Relations Board, March 18, 2015.

[2]  National Labor Relations Act; 29 U.S.C. §§ 151-169.

[3] Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez, NLRB Cases 02–CA–068612 and 02–CA–070797, March 31, 2015.