I spoke at the Arizona Self-Insurers Association (ASIA) IMPACT 2012 Conference at the Tempe Buttes on Thursday. I always forget how gorgeous this location is – as its entrance is tucked away near Tempe Diablo Stadium. By the time I arrived on Thursday afternoon, the conference was well underway and the event definitely seemed like the place to be for the day.
My topic was the IMPACT of Social Media: Social Networking Issues in the Workplace. This was a timely presentation, as just a few days earlier the NLRB reaffirmed the ALJ’s Karl Knauz decision, finding that the company did not violate an employee’s Section 7 rights for terminating him due to his inappropriate comments on Facebook.
Every time I discuss social media and the workplace, I think of more issues to mention or reiterate here:
Keep in mind that social media liability extends far beyond the NLRA and whether employees are “allowed” to say what they are saying online. Discrimination and harassment can occur via text message, email, or post, just as it can occur in person. And employers can be exposed to discrimination claims if they learn too much about an applicant (e.g., finding out their religion on Facebook while searching for their name online). Even if an employer does not consider anything about an applicant’s protected class, it is more difficult to rebut an allegation once an employer has knowledge.
FLSA issues come up when employees claim they are working from home or overtime when they are emailing or posting off-hours. Privacy issues arise when employees believe they have an expectation to privacy for their computers, emails, and phones. Even FTC regulations can come into play if an employee is providing misleading information about his or her company’s services or products online.
The importance of a carefully-drafted social media policy cannot be emphasized enough, as potential issues are only going to increase.
Here are some social media policies that have been found to be unlawful:
- Employees may not use social media to release confidential guest, team member, or company information.
- Employees must be sure that social media posts related to the employer are completely accurate and not misleading and that they do not reveal non-public company information on any public site.
- Employees must check with the company’s legal counsel or communications team before posting information about the company to a social media site.
- Employees are forbidden to post photos, video, quotes or personal information of anyone other than themselves online without getting permission.
- Employees are prohibited from incorporating employer logos, trademarks, or other assets into social media posts.
- Employees should think carefully about “friending” co-workers on external social media sites.
- Employees may not use social media to comment on any legal matters, including pending litigation or disputes.
- Employees on social media should not pick fights and should adopt a warm and friendly tone that will encourage others to respond to postings and join your conversation.
- Employees may use personal electronic communications to express personal opinions regarding the workplace, work satisfaction or dissatisfaction, wages, hours, or work conditions with colleagues provided that access to such discussions is not generally accessible to the public.
As promised to the IMPACT attendees, you can find *the* social media policy drafted by the NLRB here: Social Media Policy from Report of the Acting General Counsel. The Workplace Word article I drafted regarding overbroad at-will policies is here, and the article regarding social media in the workplace is here.
This week, I am gearing up to film some one-minute video segments – Law in a Minute. This should be interesting since I just had minor oral surgery and can’t talk that clearly right now… Hopefully it won’t end up being a minute of silence.
*Tempe Buttes photo from Marriott.