Social media like Facebook, LinkedIn and Twitter are changing how businesses interact with their customers and employees. While this new technology provides opportunities, it also presents unique challenges. Social media blurs the line between public and private conversations and between business and private activity. Only now is the law beginning to address the novel situations the technology creates.
Employees have always complained about their jobs, their supervisors and their customers. Before social media, such conversations were face to face, conducted over a phone or perhaps contained in an email to a few recipients. The audience was usually limited, and the dialogue fleeting. However, when such a conversation takes place on a social media site, it may be visible to many more people and remain available for weeks, months or longer. Employers can and do read such posts, often with significant consequences for employees. Indeed, employees fired over social media posts are a frequent news item in today's world. A North Carolina pizza waitress lost her job after grumbling on her Facebook page about a meager tip. An employee of the Philadelphia Eagles was sacked for a Facebook post criticizing the team for letting a player go to the Broncos. In response to the special challenges of social media for employers and employees, many companies have attempted to set out guidelines, adopting "social media policies" that specifically address issues like comments about the company, supervisors, co-workers or customers.
Exactly what social media policies are appropriate, however, remains in flux. The National Labor Relations Board (NLRB) recently brought a complaint against a Connecticut ambulance company, American Medical Response of Connecticut, for firing an emergency medical technician for complaining in colorful terms on Facebook about her supervisor. The company had in its employee handbook a "Blogging and Internet Posting Policy" that stated that "employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." The NLRB alleged that the employee had been asked to respond to a complaint about her, and when she requested union representation, was threatened with discipline. It was at this point she then allegedly posted comments on her Facebook page critical of her supervisor. Co-workers posted supportive responses. She was then terminated. The NLRB asserted that the employee's subsequent firing violated the National Labor Relations Act because it penalized her for discussing working conditions, a protected activity under the act. The case was settled this February. The company agreed to revise its policies so as not to improperly restrict employees from discussing wages, hours and working conditions, and affirmed that it would not discipline or discharge employees for engaging in such discussions.
The American Medical Response case and others like it are not limited to employers with unionized workers. The National Labor Relations Act reaches beyond union employees; nonunionized workers may also be protected under the act, and so a wide range of employers are potentially affected. Outside the National Labor Relations Act, other state and federal laws may limit what an employer may do after obtaining information from an employee's social media site. For example, states such as New York and California have passed laws that restrict an employer from taking action against employees for certain conduct outside of work that is otherwise lawful.
Most employers are aware of the wealth of information about employees available through social media, and some monitor it. However, several recent examples suggest that if an employer accesses employee social media through compulsion or pretext, it could be liable under a variety of legal theories. A 2008 New Jersey case presents a good example. A waiter working at a Houston's restaurant in Hackensack created a MySpace page called the "Spec-Tator" that could only be accessed by invitation. The waiter invited several co-workers to use the page, and there they made sexual remarks about management and customers, referred to violence and drugs, and discussed a wine test that was to be given to employees. When one of the restaurant managers learned about the MySpace page, he asked a greeter at the restaurant who had authorized access to the site to turn over her password. The greeter testified that she provided the password under fear she would "get in trouble" if she did not. After the manager reviewed the site, the waiter and another employee were fired. The fired employees brought claims under, among other laws, the Stored Communications Act. That federal law makes it illegal to access "without authorization" a facility through which an electronic communication service is provided. The jury found that the manager did not have authorization despite the fact that he had obtained the password from the greeter. The jury ultimately returned a verdict against the restaurant on the Stored Communications Act and other claims, and awarded punitive damages.
In another recent case, a marketing director for a Chicago interior design firm developed a personal following on Facebook and Twitter. She also created a blog for the design firm. After being struck by a car, the marketing director was hospitalized and homebound for several months. During her absence from work, her employer allegedly accessed her Facebook and Twitter accounts and posted messages promoting the interior design firm. The marketing director sued on a number of grounds, and the court permitted her false endorsement act claim against her employer to proceed. That case is still pending.
When litigation does strike, companies will be faced with the question of whether they have to provide social media postings in response to discovery requests. A company that actively uses social media may greatly expand the amount of discoverable information under its control. If companies ask employees to use personal social media accounts for business purposes, the scope of discoverable information under the companies' control could potentially extend even to those personal accounts. In either case, advance planning about how a "litigation hold" of social media would be implemented in the event of anticipated litigation should be addressed before such a contingency occurs. Both Facebook and Twitter have procedures for the preservation and procurement of information from the sites.
Social media poses many more legal questions for companies, many of which have not been conclusively addressed by the courts. For example, does a commercial general liability policy cover liability arising out of social media use? Can social media postings create a hostile work environment? What risks does a company face when it uses social media to research job candidates? These cutting-edge issues remain open questions, and companies would be wise to consider them before exposing themselves to potential liability.
This article is designed to give general information on the developments covered, not to serve as legal advice related to specific situations or as a legal opinion. Counsel should be consulted for legal advice.
