The law of the (social media) jungle

May 03, 2013
The law of the (social media) jungle

Should you peek at a job applicant’s Facebook page as part of his background check? Can you discipline a disgruntled employee who trash-talks your business on Twitter? Is it OK for employees to check personal email at work?

Business owners are increasingly grappling with problems related to their staff’s use of social media. It’s also relatively uncharted territory for the lawyers and labor organizations that advise employers on such matters.

“This is really an issue that is expanding rapidly in importance,” said Susan Blackman, an attorney who specializes in employment law at Willcox Savage in Norfolk.

So rapidly, in fact, that many businesses are drafting social media policies for their employees. But what can an employer legally restrict? For example, in addition to limiting personal Facebook time at the office, some business owners have tried to police any off-duty postings that reflect poorly on the company.

Last year, the National Labor Relations Board issued some guidelines for businesses that adopt such policies.

“The board had to decide where to draw the line on what could and could not be punished,” Blackman said. “They said an employer can prohibit the disclosure of trade secrets or comments that violate laws against harassment and discrimination.”

Employers can also prohibit the posting of sensitive, confidential or competitive information related to the company, such as trade secrets, copyrights, internal memos or confidential reports.

They cannot, however, restrict anything that’s considered “protected and concerted activity.” This basically means that, in some cases, employees who trade tweets about wages or working conditions are no different than workers who organize down at the union hall, said Roanoke attorneys Victor Cardwell and Thomas Winn, who focus on labor and management relations at law firm Woods Rogers.

The firm presented a seminar called “Social Media in the Workplace” on April 24 at the Roanoke Regional Small Business Development Center.

“The National Labor Relations Board is the entity that deals with labor-management relations where unions exist,” Cardwell said. “They got involved in social media policies because the idea of unions is that you have two or more people together who can engage in protected, concerted activity. The board says if you’re out there on Facebook and you’re talking about work, then that might be protected, concerted activity, whether an employer has a union or not.”

Can you peek at a job applicant's Facebook page?

However, one person’s generalized griping or ranting does not qualify as protected activity, experts say, though a social media policy can certainly discourage -- not prohibit -- those types of comments.

“Sometimes people do outrageous things on the Internet,” Blackman said. “They lose all inhibition; they go on a rant. “In the old days, if they had a bad day at work, they’d just go to the pub and have a beer and complain to a buddy. Nobody knew the horrible things they’d said.

“And now they post it on a social media site, and suddenly everybody knows: customers, other employees, maybe even their boss. This often runs afoul of a company’s social media policy.”

By the same token, employers should emphasize an open-door policy and encourage an unhappy employee to discuss any complaints with a supervisor, rather than posting an angry rant on Facebook.

Should a social media policy prohibit employees from visiting their personal Facebook pages at work? Blackman advised business owners to use common sense in deciding what to restrict. Essentially, you don’t want Internet or social media use to be disruptive to an employee’s work or co-workers.

For example, if an employer runs a call center where every minute counts and employees are paid by the hour, then it’s sensible to prohibit any personal Internet use while on the clock. But the owner of an advertising agency where the copywriters and designers are salaried can give employees more leeway.

“Don’t write a rule that’s more strict than you’re willing to enforce,” Blackman said. “If you have a good employee and they spend a few minutes doing something personal on the Internet, are you really going to discipline them? So think about your work culture.”

A good social media policy can definitely discourage any type of workplace harassment or discrimination, Winn said.

“We get calls from employers where it’s been reported to them that one employee is harassing another, and they bring in printouts of Facebook posts and messages,” he said. “So it’s an important issue. It’s very important for employers to have social media policies. “We’re seeing this type of evidence discovered and used extensively in litigation on both sides.”

Social media represents an “interesting and evolving area of the law,” Cardwell said.

For more information, visit the NLRB's social media page.