Workplace Discrimination

Social Media

The use of technology for personal and business reasons has exploded, and with that explosion comes challenges for employers. Information that was once broadcast by word or written media is now instantly broadcast around the world, to the detriment of some employers and employees.

While you may want to use social media, such as Facebook, Twitter, LinkedIn and MySpace, to advertise or market products and services, the use of some social media sites can cause problems in the workplace. These workplace issues include:

Free speech
Hiring and discrimination
Privacy
Harassment
Termination
Compliance with marketing guidelines from the Federal Trade Commission

Social Media and the NLRB: Employers need to be aware that certain sections of the National Labor Relations Act (NLRA) may affect their social media policies, even in nonunion settings. Sections 7 and 8(a) of the NLRA prohibit employers from restricting or chilling the rights of employees to engage in concerted activities, such as discussing wages, work conditions and other terms of employment.

The National Labor Relations Board (NLRB) has taken action against some employers for terminating employees who posted negative comments about supervisors or about the company on the employee’s personal social media page (such as Facebook). An employee who uses social media to complain that his/her wages are too low, or that the employer is violating labor laws, may enjoy NLRA protection. However, an employee who simply rants about a supervisor with no complaint about improving working conditions may not be protected.

The NLRB activity in this area has caused concern about the scope of employer social media policies, especially those that might infringe on an employee’s ability to discuss work conditions.

The state of the law in this area is in flux — with continued opinions coming from the NLRB during 2013.

In addition, on June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several NLRB decisions relating to social media.1

Employers should carefully review their social media policies and consult with legal counsel for further guidance. Employers should use caution when disciplining an employee for making statements about the workplace on social media websites and should again consult with legal counsel.

Social Media and Employee Discipline: Employees often talk shop during and after work hours. In the past, a typical example was employees gathered around the water cooler and complaining about their supervisor. Now, that water cooler conversation might take place on Facebook, Twitter or some other social media outlet. This can create problems for an employer, especially if an employee discloses a trade secret or identifies himself/herself as an employee of an organization when posting a potentially controversial statement.

However, employees have the right under both the California Labor Code and the National Labor Relations Act to discuss their working conditions, pay or other work-related issues.

Significant media attention has focused on employees who were terminated after posting information, photos and/or video that harmed their employers. As mentioned, the NLRB is taking a hard look at disciplinary actions taken against employees who post comments about work on social media sites.

The issue also arises as to how much privacy an employee has with regard to his/her personal social media accounts and the ability to obtain this information for disciplinary purposes, especially in light of a law passed in 2013.

Social Media and Employer Policies: Employers who wish to protect their business from problems associated with social media should create clear electronic media policies. These policies should include a discussion regarding social media use and should be part of an employee handbook.

Employers should discuss appropriate and inappropriate uses of social media on company-provided equipment during work hours. The policies should cover the use of electronic devices, such as computers, laptops and smart phones, in the workplace. You need to be mindful of your company's polices relating to these issues. Some companies take a fairly flexible approach to social media usage, while other companies take a more restrictive approach.

Employers must be cautious about the wording of these policies. The National Labor Relations Board (NLRB) has not only overturned employers’ decisions to discipline for social media posts, but has also taken issue with the underlying policies relied on by the employer as a basis for the discipline.

In the NLRB’s third report concerning social media cases, the NLRB focused on employer policies, and considered numerous cases involving employer’s social media policies. The NLRB found the majority of the policies to be unlawfully broad.

The NLRB’s Office of General Counsel gave this advice: “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.”

On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several NLRB decisions and advice memoranda relating to social media.

Social Media, Hiring and Discrimination: More and more employers make hiring decisions based on what they find online. Searching online media sites may reveal relevant information about an applicant, such as awards that he/she won or articles that he/she published. But, consulting these online sources presents risks. Be very careful about what types of data you review and how you use this data.

Legislation Prohibits Requesting Personal Social Media From Applicants: Employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Specifically, under Labor Code section 980, employers are prohibited from requiring or requesting an applicant to:

Disclose a username or password for the purpose of accessing the applicant’s personal social media
Access personal social media in the presence of the employer
Divulge any personal social media

Social media accounts can include Facebook, LinkedIn or Twitter accounts, for example. Social media accounts are defined by this law as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or account, or Internet Web site profiles or locations.”

These same prohibitions also apply to current employees. If you are interviewing to promote a current employee to an open position, you cannot request or require the disclosure of username or password to access the employee’s personal social media. There is an exception for investigations and employer-issued electronic devices.

Legislation Prohibits Requesting Personal Social Media From Employees: Employers are prohibited from requiring or requesting employees to disclose information regarding their personal social media accounts. This includes email accounts. Specifically, under Labor Code section 980, employers are prohibited from requiring or requesting an employee to:

Disclose a username or password for the purpose of accessing the applicant’s personal social media
Access personal social media in the presence of the employer
Divulge any personal social media

Social media accounts can include Facebook, LinkedIn or Twitter accounts, for example. They can also include personal email accounts. Social media accounts are defined by this law as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or account, or Internet Web site profiles or locations.”

Under this law, employers can require an employee to access, log in, or divulge personal social media in two instances.

First, the law does not affect an employer’s rights and obligations to request an employee to divulge personal social media that is reasonably believed to be relevant to an investigation of employee misconduct or employee violation of applicable laws and regulations. Social media obtained during the course of such investigation must be used solely for purposes of the investigation or related proceedings.

Second, an employer can require or request an employee to disclose a user name or password for purposes of accessing an employer-issued electronic device.

Employers cannot retaliate, discipline, discharge or threaten to discharge an employee for not complying with an employer’s request or demand to reveal personal social media information in violation of this law. These same prohibitions also apply to job applicants.

Social Media and Privacy: California law broadly prevents employers from intruding into employees’ legal off-duty conduct. You can discipline employees only if the off-duty conduct is illegal; if it presents a clear conflict of interest to the business; or if it adversely affects the employee’s ability to do his/her job. The U.S. and California constitutions also create privacy rights for individuals.

Social Media and Harassment: Unfortunately, social media gives employees another way to harass co-workers. Not only can an employee harass a co-worker in person, the employee can post harassing messages to a co-worker’s Facebook page during off-work hours.

Social Media and Marketing: Late in 2009, the Federal Trade Commission announced changes to the FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The FTC’s guides address endorsements by consumers, experts, organizations and celebrities. The FTC said the revised guides also add requirements that mandate that “material connections” between advertisers and endorsers must be disclosed. Material connections include payments or free products. The FTC’s reasoning is that consumers would not expect these connections to exist. The FTC posted the revision text on its web page.