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Social Media and the Law

Published Monday May 9, 2011

Author JON WILKINSON

Technology... is a queer thing.  It brings you great gifts with one hand, and it stabs you in the back with the other.

The famed British scientist and author C.P. Snow was undoubtedly not contemplating social media when he made this assertion in 1971. Nevertheless, his words perfectly capture the dilemma that social media tools present to employers in 2011.

Social media can blur the lines between professional and personal activities, while expanding the workplace well beyond a company's brick-and-mortar walls. So what can an employer do to protect its business reputation and proprietary information while encouraging the use of social media, respecting employee privacy, and complying with employment laws and regulations? Or put another way, how does an employer avoid being stabbed in the back by social media tools?

Defining Protected Speech

Medic Dawnmarie Souza didn't know it at the time, but a negative comment about her boss on her Facebook page in 2009 turned into a key case regarding social media and protected speech.

In 2009, American Medical Response (AMR) in New Haven, Conn. denied Souza's request for union representation after a consumer complaint was filed against her. Souza subsequently made negative comments about her supervisor on her Facebook page from her home computer. She was later fired. The National Labor Relations Board (NLRB) filed a well-publicized complaint in October 2010 against the company, resulting in a confidential settlement earlier this year.

AMR's written policy prohibited employees from making disparaging remarks about the company and its supervisors in social media posts, including posts made outside of work from personal accounts. But federal law gives employees the right to air their grievances, and the NLRB made clear in a post-settlement statement that employers who sanction employees for criticism of the employer via social media outlets risk being cited for violations of Section 7 of the National Labor Relations Act (NLRA).

Section 7 grants a range of rights to employees to form or join unions, as well as protecting employees in the airing of grievances against their employers. Specifically, it grants employees the right to form, join, or assist labor organizations and to engage in collective bargaining. Section 7 applies to a range of activities, including protecting employees who air grievances, and take part in on-the-job protests, picketing, and strikes. Section 7 has been broadly applied by the NLRB and the courts, and has been held to apply to both unionized and non-union workplaces.

Drawing the Line

The AMR case is not the first instance of the Labor Board addressing social media policies. In 2009, the International Brotherhood of Electrical Workers filed a petition with the NLRB requesting a determination that the social media policy of Sears Holdings (the parent company of Sears), which forbid criticism of the company or its officials via social media outlets, was a violation of the NLRA.

The suit was not intended solely to protect after-hours venting by employees. Significant portions of the IBEW's communications and organizing efforts now use social media, and the union was concerned about those activities being curtailed.

In December 2009, the NLRB's Office of the General Counsel issued an Advice Memorandum that recommended dismissal of the IBEW's complaint. Although the memorandum was officially a victory for the employer, it did not provide employers with clear guidelines for social media policies. In reaching its decision, the NLRB noted that Sears Holdings' prohibition on criticism of the employer was problematic.

But upon an intensive review of the company's entire social media policy, it did not appear likely to prevent workers from exercising Section 7 rights.

In one respect, however, the Sears Holdings decision is clear-overly broad social media policies are a violation of the NLRA if the policies as a whole have the potential to discourage workers from asserting rights granted by the NLRA.

While overly broad or onerous social media policies must be avoided to steer clear of NLRA violations, policies that fail to consider all possible uses of social media can put employers in a precarious situation.

Consider the case of Paul Mirengoff, a partner of the law firm Akin Gump Strauss Hauer and Feld in Washington, D.C. In January 2011 Mirengoff submitted a blog post on Powerline.com concerning the public memorial service for victims of the shooting in Tucson. Specifically, Mirengoff wrote disparagingly about portions of the ceremony that involved tribal Indian traditions and beliefs, while complaining that Christian religious beliefs should have been given more prominence.

Akin Gump, which is the 35th largest law firm in the country and has a thriving American Indian law practice, expressed significant displeasure with Mirengoff's comments. While the firm has not disclosed specific information about its social media policy, Mirengoff remains as a partner at the firm, and it appears that his statements did not violate Akin Gump's existing policy. In fact, a representative from Akin Gump later acknowledged the firm was reviewing its social media policies in light of the incident.

Protecting Your Business

Given the complexity of the social media world and existing federal laws, here are a few steps every organization should take:

Create a clear and concise social media policy. The policy should, at a minimum, create safeguards to protect confidential company and client information, as well as prohibit violation of other company policies, such as sexual harassment.

Specific guidelines should be issued for employees who are encouraged to use social networking for business purposes. Further restrictions should be based on industry and other considerations. For instance, employees in the medical field should be prohibited from publishing any information that could violate HIPAA privacy rules.

Prohibit disparagement of the company, while being clear that the prohibition does not extend to activities covered by the NLRA. Based on the NLRB's actions to date, it appears that social media regulation by employers is permissible, with the caveat that NLRA rights cannot be infringed when it comes to airing grievances. With respect to social media policies, it appears that the NLRB will accept policies that bar criticism of the company, provided that the policy is otherwise clear that the bar does not extend to any protected Section 7 rights relating to airing grievances and union activity. At a minimum, employers can feel comfortable in asserting rights to protect confidential information, as well as sanctioning employees for defamatory statements that are untrue or inaccurate. 

Educate employees about the lines between their personal and professional lives. Employees need to understand they are representatives of their company even when they're away from the office and interacting with others using personal social media accounts. They should also understand that employers have the right to investigate social networking activities by their employees, and to discipline or terminate employees based on specific policy violations.

Regularly review your organization's social media policy. Technology is quickly evolving, and the law is scrambling to keep up. New laws, administrative rulings and court decisions will further define the rights of employers and employees with respect to social media.

Jon Wilkinson is a partner at Wilkinson Law Offices, based in Portsmouth, and heads up the firm's Internet and Technology Practice. He can be reached at 603-559-9300 or jon@wilkinsonlawoffices.com

 

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