Employment law is atwitter over social media Law & Regulation

the dateJuly 18, 2012

The exploding popularity of social media such as Facebook, YouTube, Twitter and LinkedIn continues to create legal pitfalls for employers as they try to navigate the fast-changing online environment, North Texas labor and employment lawyers say.

One of the latest challenges: making sense of the National Labor Relation Board’s evolving stance on social media policies and how management-side employment lawyers should counsel companies that are drafting or revising them, said Amber Taylor Welock, a partner in law firm Dykema Gossett PLLC’s litigation practice in Dallas who specializes in emerging issues involving use of social media.

The NLRB — the federal agency that investigates allegations of company unfair labor practices — recently issued its third in a series of reports that attempt to give employers guidance on how to create legal social media polices, Welock said.

In the report, the NLRB reviewed seven cases of employer social media policies handled by the board, six of which were found to violate part of the National Labor Relations Act because the policies are overbroad. Despite the board’s guidance, the issue remains far from black-and-white, Welock said.

“It left very many shades of gray as to what could and could not be in a social media policy,” Welock said.

NLRB opinions

Employers should be careful when crafting social media policies and when disciplining an employee for conduct on Facebook, Twitter and other social media venues, Welock said. The NLRB’s reports caution that overly broad policies can violate Section 7 of the National Labor Relations Act, which protects employees’ rights related to the workplace, she said. The rules apply to both union and non-union employers.

In a move favorable to employers, Welock said, the NLRB decided it’s fine for employers to require employees to include disclaimers on their postings, such as “The postings on this site are my own and do not represent (the employer’s) positions, strategies or opinions,” if the postings directly or indirectly relate to the employer.

In a less employer-friendly move, the board ruled unlawful a policy instructing employees not to share information such as pay rates with co-workers because of the possibility that employees would construe the policy as prohibiting them from their right to discuss information regarding terms and conditions of their employment, Welock said.

The board also disapproved a policy including a condemnation of posting “offensive, demeaning, abusive or inappropriate remarks” online. The board found the policy overly broad and said it could restrict an employee’s protected right to criticize his or her employer’s treatment of employees, Welock said.

Because of the NLRB’s opinion, most employers should overhaul their company social media policies in a way that does not restrict employees’ rights to engage in protected activities, said Matt Scott, an employment lawyer with Kendall Law Group in Dallas.

“They’re going to have to look at their policies and make sure they’re not overly broad,” Scott said. “They’re going to have to put some thought into the policies and make them reasonable.”

Perks and pitfalls for employers

Social media policies touch nearly every aspect of labor and employment law, both before and during employment, said Billy E. Hammel, a partner in the Dallas office of national labor and employment law firm Constangy, Brooks & Smith LLP.

“This is a really hot topic,” he said.

For example, some companies are requesting job applicants’ Facebook information or requiring applicants to “friend” a third party, such as a private investigator, Hammel said. Others are asking applicants to sign in to Facebook to review their profile during the interview process.
Employers do this to combat resume fraud, to look for inappropriate pictures or illegal behavior, and other reasons, he said.

But asking for social media information at the applicant stage is risky for employers, Hammel said. Employers typically cannot ask for an applicant’s race, religion, marital status, pregnancy status, sexual orientation or age. Employers who observe an applicant’s Facebook profile unnecessarily expose themselves to discrimination claims by applicants who are not hired, he said.

Social media profiles often are highly relevant to company investigations of current employees, he said. Hammel said in his experience, nearly all employers have suspended or fired at least one employee for social media use ranging from Facebook evidence of drug use outside of the workplace to sexual harassment of a coworker.

In May, Maryland became the first state to pass a law prohibiting employers from asking applicants or employees for their social media information, and similar legislation is proposed in several other states, he said.

“I think (requiring social media log-ins of job applicants) will be illegal in dozens of states by the end of the year,” Hammel said. Texas currently has no laws addressing the trend, but Hammel said he expects legislation preventing employers from asking applicants for social media information to be filed in the upcoming session, which starts in January.

Scott said the law gives employers latitude to look at applicants’ profiles on sites such as Facebook and LinkedIn. “My take on it is, if I’m going to hire someone, I’m going to see them face-to-face anyhow,” he said. “I’m going to see if they’re black or Hispanic, male or female. Facebook is not going to tell me anything I cannot see during the interview.”

Darin Klemchuk of Dallas law firm Klemchuk Kubasta LLP, said he advises employers to be careful before checking out job candidates on social media sites. If companies decide to do so, they should have someone who does not make the hiring decision look at the candidate’s profile and not communicate any protected information to those doing the hiring, he said.

“That’s a clean team, basically,” Klemchuk said. “In my opinion, that’s the safest approach. It’s a good risk reduction exercise.”

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