In this preview of an article from Issue XXIV, Volume 11 of the PLUS Journal (November 2011) authors Sarah K Goldstein and Imbar Sagi look at the liability exposures relating to employee use of social media.

For more on employment liability and cyber exposures register for the 2012 Professional Risk Symposium, March 29-30 in Chicago.

From the article:

Social Media and Current Employees

More than ever, employers have access to what their employees do and say both inside and outside the workplace. Widespread usage has created a host of problems for employers who do not know the “new rules” of social media. A sampling of recent court and regulatory agency decisions provide some guidance.

A New Jersey court found that a restaurant manager who monitored employees’ postings on their personal Myspace sites violated state and federal laws protecting communications on social media websites. The lawsuit was brought by two employees fired after posting information criticizing their managers on an online forum, which required a password and invitation for access. The managers were not provided such access.  However, they coerced an employee into providing the password and, in turn, accessed the site, found the postings and promptly terminated the employees. The court held that employees’ criticisms, expressed via the social network, were protected activity pursuant to the Federal Stored Communications Act (18 U.S.C. Section 2707) and parallel New Jersey statute.

In another case, the National Labor Relations Board (“NLRB”) brought an action against a Connecticut company for illegally terminating an employee who criticized a supervisor on her personal Facebook page. The NLRB took the position that pursuant to Section 7 of the National Labor Relations Act (“NLRA”) the company cannot retaliate against an employee for engaging in “concerted activities for the purpose of collective bargaining or other mutual aid of protection.”  The company agreed to revise what the NLRB determined to be overly broad policies and procedures restricting employees from communicating on the internet with other employees about working conditions.

On August 18, 2011, Associate General Counsel of the NLRB issued Memorandum OM 11-74: Report of the Acting General Counsel Concerning Social Media Cases.  It summarizes the resolution of more than a dozen cases involving social media. From the NLRB’s standpoint, an employee’s activity is considered to be “concerted” and thereby protected, when the employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. It is significant to note that the participation of more than one employee is not required to find concerted activity.

Concerted activity by employees has been found lawful in the following instances: where a Facebook posting about perceived unfairness in the poster’s workplace drew similar responses from other employees; in a Facebook post by an employee seeking support from co-workers to lodge a complaint about another co-worker; and in a social media posting by an employee who wrote about his disagreement with a management decision.  In each of these cases, the employers’ discipline/termination of the employee was found to be problematic.

To date, state and federal courts have applied a broad standard allowing employees to discuss their work concerns in blogs and/or social networks. Similar to cases brought before the NLRB, courts have found concertedness when an employee drafts a post, when employees discuss their concerns and one of the employees decides to blog, and posts on a blog which simply invite others to participate in a discussion where the audience are co-workers interested in the topic at hand.

Because this area of law is still largely uncharted, legal experts suggest that employers take precautions against potential exposure now by having policies and procedures in place. Employers are urged to consider the NLRA Section 7, Title VII and correlated state statues as well as freedom of speech rights so that the rights of employees are not chilled via the company’s social media policy.

Employer surveillance creates fear among employees and chills their freedom to exercise rights under the labor laws.  When surveillance is used to track an employee for retaliatory purposes, such surveillance is unlawful. However, surveillance may be lawful when the employer has a reasonable belief that an employee is placing a company at risk for breach of confidentiality or proprietary information.

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