Remember when social media was just a fad—a silly waste of time only for the younger generations? Employers were worried about this unfamiliar form of communication, which created new liability risks and headaches. Nearly ten years and counting into the general public’s widespread adoption of social media (Facebook has been publicly available since 2006!), where do things stand between employers and employees when it comes to social media? What real impacts has social media had in the workplace?
Here are some observations (although, time and space permitting, many more certainly could be made):
Employees still do stupid stuff (really stupid stuff) on social media
Oh, there are many, many examples of this, which range from disgusting (hello, employee who urinated on the Nachos BellGrande at a Taco Bell) to truly disturbing (did six HSBC bankers in England really think that they wouldn’t lose their jobs this past summer after they play-acted an ISIS beheading and posted the video on Instagram?).
After countless incidents of employees being fired over purported “jokes” on social media (shameless social media plug: collected at my Twitter feed @Fired4Facebook), you would think people would learn. Apparently, not yet. You should check out this Rolling Stone article compiling some of the most egregious recent examples – Katie Halper, A Brief History of People Getting Fired for Social Media Stupidity (July 13, 2015) at http://www.rollingstone.com/culture/lists/a-brief-history-of-people-getting-fired-for-social-media-stupidity-20150713#ixzz3lLQ7ZYxD.
But, not everything employees do on social media is bad
As recently reported by The Washington Post, there are many examples of employer’s benefiting from giving their employees some social media freedom. See Justin Brady, How trusting employees can help a company score viral hits (Sept. 4, 2015) athttp://www.washingtonpost.com/news/innovations/wp/2015/09/04/how-trusting-employees-can-help-a-company-score-viral-hits. Companies can reap immeasurable marketing rewards and enjoy great press when employees, on their own initiative, score viral video hits or create viral social media posts reflecting positively on their employers. For example, a video of a Southwest Airlines flight attendant playfully rapping safety instructions and a humorous Amazon customer service chat under the aliases “Thor” and “Odin” which was posted online received loads of press coverage and have been viewed millions of times. Id.
It’s still a really bad idea for supervisors to be “friends” with their subordinates on personal social media sites
Enough said. There are a host of legal issues this can create so company policy should prohibit it and supervisors should avoid it like the plague.
However, supervisors connecting on a professional social media site, like LinkedIn, with employees they supervise might be okay, but only if the supervisor is careful and follows certain rules. For example, a supervisor should avoid posting reviews, endorsements, or recommendations for employees as it may come back to haunt the employer in a wrongful termination or other lawsuit. Likewise, to avoid claims of discrimination or favoritism, supervisors should make and accept connection requests with all employees, not just a select few.
It’s all but impossible to stop employee social media use at work
With the proliferation of smart phones and other mobile devices, employees can now access social media from anywhere, at any time, including on the job. Simply prohibiting employees from using company equipment to access social media doesn’t solve the problem. An effective policy should address employees’ use of their own mobile devices during working time, as well as a host of other issues, such as protecting the confidentiality of business information, prohibiting online harassment, barring disparagement of customers and competitors, and explaining the rules for employee endorsements and testimonials via social media.
Even with a more comprehensive policy, the ubiquitous nature of employee social media use makes it nearly impossible to police. And, an absolutist policy prohibiting workplace social media use may drive away coveted millennial workers. In a global survey of college students for the 2011 Cisco Connected World Technology Report, over half of those surveyed (56%) said “they would either not accept a job offer or would join and find a way to circumvent corporate policy” if an employer barred employees from accessing social media in the workplace. Cisco News Release, The New Workplace Currency – It’s Not Just Salary Anymore: Cisco Study Highlights New Rules for Attracting Young Talent Into the Workplace (Nov. 2, 2011). In that same report, nearly half (45%) of young employees surveyed said they would accept a lower paying job if it offered increased access to social media, flexibility for remote work, and an increased choice of devices available for use at work. Id.
The National Labor Relations Board “likes” (and I mean really “likes”) social media
Early on in the social media phenomenon, someone at the National Labor Relations Board apparently saw social media as a hot topic and thought it would be a useful tool for educating employers and employees alike about National Labor Relations Act protections for employees in both union and non-union workplaces. Over the past several years, the NLRB has emphasized and pursued numerous social media cases and the NLRB’s Office of General Counsel has released not one, but THREE lengthy, well-publicized guidance memos dealing with the application of Section 7 of the NLRA to employee social media activities. See NLRB General Counsel Memoranda (issued Aug. 18, 2011; Jan. 24, 2012; and May 30, 2012). Do not expect the NLRB’s focus on this issue to stop anytime soon.
Social media ownership disputes between employers and employees are still hard to figure out
Courts continue to grapple with these issues and there are no bright lines. The best strategy for employers is to address the ownership issues head on, in writing and preferably at the start of employment. If not addressed up front, then employers should not be afraid to tackle it at the end of the employment relationship. Employers should remember to recover an employee’s user name and password to work-related social media accounts at the time of termination just as they require the return of tangible employer property. Employers should specifically instruct departing employees that they are no longer authorized to access employer e-mail and social media accounts and that they are prohibited from changing user names and passwords to those accounts.
If an employer is providing severance to an employee in exchange for a waiver and release of claims, employers should consider addressing social media account ownership issues in the severance agreement. Likewise, if the severance agreement includes non-compete or non-solicitation provisions, address whether and what types of social media activities are permitted or runs afoul of the agreement. For example, does a former employee’s general, public LinkedIn announcement about a new job constitute a prohibited solicitation? What about a private, direct message on LinkedIn from the former employee to the employer’s customer? These issues have been and are continuing to be litigated so it is best to address and avoid them in advance, if possible.
Americans are bemoaning the loss of personal privacy on the Internet, but employee social media account information now enjoys unique legal protections, including in Nevada
It is widely acknowledged that employers, for a lawful purpose, may view an employee’s publicly available social media posts. And, in the age of near-weekly mass data breaches exposing personal information, the public has a growing awareness that nothing on the Internet is truly private. Yet, employees and lawmakers in a number of states since 2012 have maintained that there is a sphere of personal privacy related to employee social media use, despite employer arguments that access to an employee’s “personal” social media information is at times necessary for legitimate reasons such as, for example, in the course of a workplace investigation into illegal harassment, to protect employer trade secrets, or to comply with federal financial or state gaming regulations. Nevada law–NRS 613.135–and laws in 20 other states now provide varying levels of privacy protection for the personal social media account information of employees and prospective employees. See National Conference of State Legislatures, State Laws About Social Media Privacy (June 12, 2015) at http://www.ncsl.org/research/telecommunications-and-information-technology/state-laws-prohibiting-access-to-social-media-usernames-and-passwords.aspx.
Social media use by employees over the past ten years, while not all bad, has certainly created practical problems and liability risks for employers. What will happen in the next ten years of employee social media use? It is anyone’s guess, but there’s no doubt that as technology advances and social media becomes even more integrated into our daily lives, these complex challenges will continue well into the future.
Laura J. Thalacker is a founding Member of Hartwell Thalacker, Ltd., a Las Vegas labor and employment and business litigation law firm. Laura’s practice focuses on the representation of employers and she is certified as a senior human resources professional by both the Society for Human Resources Management and the Human Resources Certification Institute. Laura tweets about workplace social media issues@Fired4Facebook.