So What’s An Employer To Do In The Current Social Media Situation?

How do you counsel a client whose employee is making questionable posts online concerning his/her job?  Advising employers these days involves staying on top of numerous evolving social media issues. Those specific challenges are met daily by Jan Michelsen, our faculty participant from Ogletree, Deakins, Nash, Smoak & Stewart, Indianapolis.  Jan has broad experience in counseling and defending management in a myriad of labor and employment law matters. She provides fellow lawyers with the benefit of her expertise during ICLEF’s “Recent Developments in Employment Law” seminar. I am grateful that she agreed to bring Law Tips readers some food-for-thought on current trends and how employers might set policy to avoid problems. 

According to a 2014 BTI Consulting survey, the growth of social media will lead to employment litigation being 1 of only 4 areas of law projected to grow in 2014. Another interesting piece of survey information was that this growth may be more in counseling than litigation. This study also emphasizes that social media use is still expanding as people increase the types of devices they use for this purpose: desktops, laptops, tablets and smart phones. One example of this growth speaks loudly in the fact that there are over 400 active social media sites today.

The workplace social media issues now involve risks to eee’s and eer’s of social media-based personnel decisions, new privacy legislation, ownership of social media accounts and risks for attorneys. This burgeoning social media activity includes employers vetting applicants through observance of their online activity. In response to this increased practice there are online resources making potential applicants aware of where they may be watched. An example of one tool is WeKnowWhatYoureDoing.com that calls itself a social networking privacy experiment. Concerned employees can go to this website to find what pieces of their Facebook activity are publicly viewable, in case they may wish to delete some of their posts.

There are other types of sites that exist to assist people in being safe online, in avoiding employment problems. For instance, the Digital Information World website has advice on the dangers of using social media under the influence. One can find there the topic entitled “Are You Sure You’re Cool To Tweet Right Now?”  that includes reminders such as this: Drink 4: Threat level = Irresponsible, in danger of texting your ex.

Another illustration of the prominence of social media in the employment world is the widely-accepted term: “dooced.”  Dooced is Internet slang for being fired from your job because of what you’ve written in a blog or website. The cases of people losing their jobs over social media activities is a growing trend. For example, here are the top 10 posts that will get you fired:

  • Hating your job.
  • Public persecution.
  • Drinking and driving.
  • Public intoxication and hangovers.
  • Relationship troubles.
  • Your great timeline milestones.
  • Steer clear of controversy.
  • Moonlighting.
  • Cursing a LOT.
  • Posting anything bad FROM work.

From the other side of the above situation, the involvement of social media in employment is becoming so public that employees are asking on Facebook to be fired, they are hijacking Twitter accounts to broadcast live tweet firings. Employees are even quitting via video; and coal miners and teachers have “gone wild” with their own accounts for these purposes.

These developing uses of the Internet in employer/employee relationships brings the discussion around to the resulting lawsuits. The important question for employers is:

What are employers being sued about in social media based decisions?

  • Discrimination.
  • Retaliation
  • Harassment
  • Anti-union animus
  • Disclosure of confidential information
  • Invasion of privacy
  • Defamation
  • Violations of HIPAA, ADA, FMLA
  • Negligent hiring or supervison

So, What’s An Employer To Do?

  • Draft policies that are consistent with and incorporate other company policies.
  • Think twice before firing or disciplining for social media activity.

Be sure no other employees are involved.

Talk to your legal counsel.

Be wary when posts are expressions of opinion.

  • NLRB will look beyond the words of the policy and to the context and totality of circumstances and the nature of the charging party’s individual dispute.
  • It’s critical to have appropriate monitoring policies and practices, as NLRB will consider how you learned about the social media discussion that prompted the adverse decision; i.e., public postings v. surreptitious discovery.
  • No quick triggers. Analyze each situation just as you would communication by other means.

Here are some employer disclaimers you may want to include:

  • “This policy is not intended to interfere in any way with any applicable federal, state or local law.”
  • “Application of this policy will be consistent with the National Labor Relations Act.”
  • “This policy will not be interpreted or enforced in a manner that would interfere with employees’ rights to discuss work-related issues with one another.”

Control your social media:

If an employee maintains an accounts on the employer’s behalf, address ownership issues.

  • Written social media-specific agreements.
  • Company should create/register the account.
  • Change the password when an employee leaves.
  • Result may differ based on when the account was created, who maintains it, and what kind of content.

What Would YOU Do?  When social media issues hit home, think about:

  • Source(s) of the information.
  • Which policies may be indicated.
  • Potential effects on employee morale.
  • Potential public relations implications.
  • Potential liability.
    • For the post itself.
    • For the disciplinary action.

Hopefully this overview of social media’s involvement in employment law will assist when the next issue develops for you or your client.  Thanks very much to Jan Michelsen for providing her timely advice for guiding employers in social media policy. If you are interested in the comprehensive On Demand Seminar, “Recent Developments in Employment Law”, Click Here.

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About our Law Tips faculty participants:
Jan Michelsen, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, counsels and defends management in various labor and employment law matters. Her areas of expertise include employment discrimination litigation, EEOC charges and complaints, sexual harassment, the ADEA, the ADA, the FMLA, WARN, in federal and state courts and before regulatory agencies.  She also counsels in the area of employment contract disputes, employee privacy issues, social media and Web 2.0, electronic communications, wage and hour issues, wrongful discharge claims, and other state tort claims, such as defamation. Prior to her legal career, Jan directed communications, strategic planning, and marketing functions as Director of Business Development at Indiana University Medical Center.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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