Social media has come a long way over the last few years. Services like Facebook and Twitter are no longer just ways to casually communicate, but can provide companies with a wealth of insight about consumer and employee behavior. As social media continues to evolve at a rapid clip, it’s safe to say that the related legal challenges in the workplace will, too.
In a recent webinar, “Social Media in the Workplace—What Is Trending for 2014?”, attorneys from Mayer Brown took a hard look at the legal landscape for social media in the work environment. Michael Lackey, a partner at Mayer Brown who helped lead the webinar, explained that social media is “blurring the lines between personal and professional life” in profound and important ways.
“The change with social media, as I think we’re all aware, is it’s not a one-on-one communication,” he said. “Here are opportunities for someone to go out and really impact, make a statement that can reach an extraordinarily large group.”
Another important factor, he explained, is the fact that while many people think they can be anonymous online, “the reality is: you’re really not.” Hackers have proved recently that they can identify and target individuals by creating profiles based on information they find on social profiles. There’s also the fact that what a user does on social media services doesn’t necessarily go away. Lackey said in the course of litigation his firm has had to look through hundreds of pages of Facebook wall posts and private messages, for example, and there is far more out there. Just on Facebook alone, there is a record of ads viewed, conversations, sign-on times, photos posted, deleted photos and friends, and more.
“This kind of rich information is out there and leaving these digital trails across the social media spectrum,” said Lackey. “So what does that mean? As a lawyer and a litigator it means if I’ve got a case and there are key people in that case, that’s information I’m going to want.”
Archis Parasharami, another Mayer Brown partner on the webinar, explained that social media can potentially be useful in litigation—particularly if there’s a “he said/she said” aspect to the case.
“Social media provides a verifiable way to prove issues that would have been contested in the past,” he said. In a wage and hour employment case, for example, Twitter or Facebook pages someone can show whether a person was actually hard at work or not.
As for where the courts stand on using these social media posts in cases, Parasharami noted that it’s rather mixed—courts sometimes permit discovery but won’t allow “fishing expeditions” into a user’s social media record.
Levels of privacy settings on social media sites are important, too. “That choice that the employee makes can make a big difference in whether the material is deemed a proper subject of discovery,” he noted.
As for the use of social media when hiring, the webinar explained that the trend seems to be to limit required disclosure of social media login information by job applicants. Laws prohibiting this have passed in 13 states as of the end of 2013, and as of January 7, 2014, are pending in another 16.
“Regardless of whether there is a law in place, where you have employees, employers need to be careful about how they use whatever information is available on social media accounts during the hiring process,” said Lori Zahalka, a Mayer Brown associate.
She said that whether or not an employer has a password, they should still be careful of other state laws that limit what employers can take into account when sceening applicants. Employers using social media to screen should also implement certain rules—a written search policy that defines which social media sites can be examined in the hiring process and what specific information will be reviewed—for example, hate speech or criminal activity.
“If you do implement a written policy, stick to the policy so there is no question about when employers may have deviated from it,” Zahalka said.
She also suggested putting a legal wall between the screener and hiring decision-maker, to “eliminate even the appearance of impropriety if the screener sees something that is a protected characteristic, that would not be communicated to the ultimate decision-maker.”
Another evolving area is the interpretation of the National Labor Relations Act (NLRA) in the context of social media. The National Labor Relations Board (NLRB) has had to tackle the question of if and how employees should be disciplined for discussing work-related topics on social networking sites.
Zahalka used the example of the Butler Medical Transport case, which the NLRB decided in September 2013.
“This is a good example of when it’s permissible to fire someone for a Facebook post, and when you can’t do that because it’s protected concerted activity,” she said.
The case involved the firings of two employees by a Maryland medical transport company for comments they posted on Facebook. The first employee commented on the page of a co-employee who had been fired for making comments to patients about the safety of vehicles, telling the other employee that she should hire a lawyer or go to the labor board. This employee’s NLRB claim was upheld as protected concerted activity since the condition of the company vehicles was a matter of mutual concern.
The second employee posted on Facebook that he was in a broken-down Butler vehicle for second time in two weeks because Butler did not want to pay for new equipment. It turned out he was in his own vehicle and the real Butler vehicles in question were not actually in need of repair. The NLRB deemed the second employee’s claims to be “maliciously untrue,” and therefore not protected under the law.
In another case, decided by the NLRB the month after Butler, the NLRB ruled in favor of the Richmond District Neighborhood Center, a San Francisco nonprofit community center that runs youth programs.
“This is one of the first cases to show how employees can exceed the protection of the [National Labor Relations] Act on Facebook,” said Zahalka. “It can be part of concerted activity, but it may not be protected if it’s so egregious to take it outside the protection of the Act.”
Employees of the center went on Facebook to discuss how they wanted to take the kids in their youth program on field trips without asking the center for permission, and then leave the center to figure out where to find the money to fund the trips. After the center fired them, the NLRB lent its support, finding that the comments were egregious enough to cause legitimate potential harm to the safety of youth and the center’s funding.
“I think one of the things we’ll see in 2014 is developments with respect to this particular dissent and the bounds of when something is so egregious that it might be taken out of the protections of the Act,” Zahalka said.