social media in the workplace · agenda and #goals •understand the legal framework that governs...

Social Media in the Workplace

September 24, 2019

Tim WalshPillsbury Winthrop Shaw Pittman [email protected]: 202-663-8455

Meghan Claire HammondPillsbury Winthrop Shaw Pittman [email protected]: 202-663-8189

Agenda and #Goals

• Understand the legal framework that governs social media workplace issues and policies, including: o Limits on restricting employees’ social networking activities, ando Social media privacy laws

• Identify and implement best practices in social media policies

• Evaluate the impacts of social media in the workplace and in employment decisions through discussion scenarios

1 | Social Media in the Workplace

Discussion Scenario 1: Sleeping on Shift

• Sally Smith, an employee at the ACME Atomic Nuclear Power station, used Instastory to snap a photo of a dozing nuclear plant security guard at his guard station. She typed on the Story: “Keeping your community safe and secure…NOT.”

• Sally sent the Story to several family members and friends,including her cousin Ben Jones, who is a police officer in aneighboring community.

• Ben takes a screenshot of the Story, posts it on his Facebookpage along with the statement “This is not acceptable for our community,” and tags #ACMEAtomic and #NRC.


Discussion Scenario 1: Sleeping on Shift (Cont’d)

• ACME Atomic has a Social Media policy that explicitlyprohibits posting photos of the nuclear plant siteonline.

• An anonymous individual slips a printout of BenJones’ Facebook page under the Employee Concerns Program (“ECP”) office door late one night with the handwritten note “Ask Sally Smith.”

• ECP reports the photo to ACME Atomicmanagement. Sally Smith is immediately placed onadministrative leave.


Legal Framework of Social Media

Legal Framework

• Stored Communications Act (SCA)• National Labor Relations Act (NLRA)• Intrusion Upon Seclusion• State Laws on Access to Social Media Accounts


Federal Stored Communications Act (SCA)

• SCA provides that whoever ‘‘(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system’’ shall be liable for damages, unless the communications are readily accessible to the public.

• In other words, the SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public.


Federal Stored Communications Act (SCA)

• The SCA ‘‘does not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user.’’


National Labor Relations Act

• Implemented by the National Labor Relations Board (NLRB)• NLRA Section 7 (29 U.S.C. § 157): “Employees shall have the right to self‐organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .”

• NLRA Section 8(a)(1) (29 U.S.C. § 158): makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” Section 7.



• Concerted activity is when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee him/herself .

• Concerted activity is for “mutual aid or protection” where the activity directly implicates terms and conditions of employment and was initiated or intended to bring the matter to the attention of the employer.

• Low threshold to trigger applicability.


National Labor Relations ActThe Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017) • Upheld Boeing’s “no camera” policy which stated, “[e]mployees or visitors shall not carry or use cameras . . . or other photographic equipment in any Company facility . . . unless authorized to do so in the performance of work assignments.”

• Overruled prior “reasonably construe” standard in Lutheran Heritage Village‐Livonia, 343 NLRB 646 (2004)

• Specifically, the Board severely criticized Lutheran Heritage and its progeny for prohibiting any rule that could be interpreted as covering Section 7 activity, as opposed to only prohibiting rules that would be so interpreted

• Replaced the “reasonably construe” standard with a new test: Whether a facially neutral policy, when being reasonably interpreted, would potentially interfere with the exercise of NLRA rights. When evaluating facially neutral policies the NLRB will now consider (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rule.


National Labor Relations ActThe Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017) • Divided facially neutral policies into 3 categories:

o Category 1: Lawful Rules• Test: Lawful where (i) the rule, when reasonably interpreted, does not

prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.

• Examples: Boeing’s “no camera” policy, “no recording” policies, rules requiring employees to abide by basic standards of civility

o Category 2: Rules that Warrant Individualized Scrutiny• If a policy does not clearly pass the test outlined above, but is not a

clear violation, it warrants additional scrutinyo Category 3: Unlawful Rules

• Examples: Rule that prohibits employees from discussing wages or benefits with one another, rules against joining outside orgs



• Employee’s activity can lose protection under the Act. Concerted activity can cross a line.

• Miklin Enterprises, Inc. v. NLRB, 861 F.3d 812 (8th Cir. 2017)o NLRB held that Jimmy John’s violated the NLRA when (among other reasons) it terminated employees who publicly distributed posters suggesting that Jimmy John’s sandwiches posed a health risk to customers

o Poster pictured two identical sandwiches, stated that one was made by a healthy worker and one made by a sick worker, and• “CAN’T TELL THE DIFFERENCE?” • “JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.’’

• “WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST.”



• Miklin Enterprises (Cont.)o NLRB held that the speech was protected unless employer could show that employees had a subjective intent to harm and a malicious motive.

o Eighth Circuit reversed the NLRB: an employee’s disloyal statements can lose protection even without actual malice. Protection can be lost where employee “falsely and publicly disparages her employer or its products and services.”

o The “critical question in the . . . disloyalty inquiry is whether employee public communications reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s products or services.”

o Eight Circuit upheld other NLRB rulings in the case.


Geographic Boundariesof United States Courts of Appeals and United States District Courts


Intrusion Upon Seclusion

• Intentional intrusion upon one’s private affairs that would highly offend a reasonable person.

• Expectation of privacy in social media is constantly evolving. • On one end is case law holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view.

• On the other end is case law holding that a reasonable expectation of privacy exists for individual, password‐protected, online communications.

• Case by case basis.


State Laws & Access to Social Media Accounts

• Twenty‐six states have laws restricting employer access to social media accounts.

o AR, CA, CO, CT, DE, IL, LA, ME, MD, MI, MT, NE, NV, NH, NJ, NM, OK, OR, RI, TN, UT, VT, VA, WA, WV, WI

• Can’t force an employee: (1) to disclose login information; (2) to log in to their social media accounts in front of employers so they can observe their posts; (3) to add employers as “friends” on personal social media accounts; or (4) to change their personal settings to make things more visible to third parties.

• Some limited exceptions for employers investigating potential employee misconduct, such as violations of company policy or the unauthorized disclosure of proprietary information.


Discussion Scenarios


Discussion Scenario 2: Facebook “Friends”

• Nurse at a hospital has a private Facebook account.• After the shootings at the Holocaust Museum, she comments on her Facebook wall that the paramedics should not have rendered aid to the shooter.

• Her Facebook friend and co‐worker emails screenshots of this post to their manager.

• The manager asks the co‐worker for further reports, and “friends” the nurse through a fake Facebook profile.

• The nurse posts further inappropriate comments and is fired.


Questions

1. Was it legal for the manager to review the screen shots of the nurse’s initial post?

2. Could he have legally terminated her employment after that single post?

3. Was it legal for him to ask the co‐worker to continue reporting to him regarding the nurse’s further posts?

4. Was the nurse’s termination legal?5. What if the manager did not request the co‐worker to report to him,

but still friended the nurse (who accepted) and then saw her subsequent post?

6. Could the company have asked the nurse for her Facebook logon and password information?


Discussion Scenario 3: Twitter Anon

• ECP receives an anonymous tip that a laborer at Ohio River Nuclear Power Plant posted negative comments about the plant on twitter.

• ECP Manager pulls up the twitter post, which says: “I don’t know if nuclear is too cheap to meter but my paycheck is.”

• ECP reported this information to the laborer’s manager. • The company requested that the laborer remove the tweet. The laborer did.


Questions

1. Was it legal for ECP to review the twitter post?2. Was it legal for the company to ask the employee to

delete the tweet?3. Would the answer be different if the tweet read: “Nuclear

is too cheap to meter and so are the paychecks of underpaid Westside laborers!”

4. Could the company ask for the Twitter logon and password information?


Discussion Scenario 4: Safety Issues

• A Mechanic at Ohio River Nuclear Power Plant posts a news article to the Facebook wall of a friend and co‐worker in the RP Department.

• The article detailed the plant’s recent discovery of a burst pipe in the condenser, a severely injured worker, and the immediate need to shut down the plant and go into outage months earlier than planned to conduct the repair.

• The Mechanic commented on the post, “I told you! Months ago I said there was something wrong with the condenser and it needed to be fixed, but no one listened. All my supervisor does is push stuff under the rug. And this time someone got hurt.”


• An Administrative Assistant in the Engineering department is Facebook friends with the RP Technician and sees the wall post. She “liked” the wall post.

• The Engineering Director is Facebook friends with the administrative assistant. Her “like” of the wall post showed up in his Facebook feed. He calls the ECP Manager and requests a meeting.

• The ECP Manager and the Engineering Director review the article and the comment. They click on the Mechanic’s Facebook profile and see that this is not the first time he has posted about safety concerns at the plant.


Discussion Scenario 4: Safety Issues (Cont’d)

Questions

1. What does ECP do here? 2. What if the Mechanic’s Facebook page was private to non‐

friends. Can the plant demand that the mechanic hand over his Facebook login and password?

3. What if you find out that the Mechanic stored his Facebook login and password on the company computer. Can you use that information now?

4. Can the Mechanic be disciplined for his post? 5. What about the Administrative Assistant for liking the post?


Questions (Cont.)

6. Can the ECP Investigator send the Mechanic a “friend” request to gain access his Facebook page?

7. Should he?


Discussion Scenario 5: Online Bullying

• Suzie Siren was feeling pretty good about herself after she blew the whistle on the shoddy work being performed by ACME Contracting during Ohio River Nuclear Plant’s last outage. That is until she saw her Facebook page.

• Several of Suzie’s union brothers and sisters have been repeatedly posting on her wall, including posting pictures of rats, and calling her derogatory names. This has been going on for weeks.

• ECP receives an anonymous concern stating that Suzie is being harassed online and identifying three union members alleged to have done the harassing.


Questions

1. What kind of situation do we have (or potentially have) here?

2. What does the company need to do?3. How does ECP proceed? 4. Can ECP ask Suzie and/or the alleged harassers for their

Facebook login information to see what has been posted?


Social Media Policy Do’s and Don’ts

Social Media Policies: What to Include

• Definition of Social Media

• An adequate definition is one that includes, but is not limited to, personal blogs; sites such as Facebook, Instagram, Snapchat, YouTube, LinkedIn and Twitter; video or wiki postings; chat rooms; personal websites; or other forms of online journals, diaries or websites not affiliated with the company.



• Company’s position on employee use of social media for personal reasons:o Respects employee’s right to write blogs, usesocial media, and use social networking sites.

o Does not want to discourage employees from self‐publishing and self‐expression

o Neutral towards employees who use social media in connection with social media for personal interests or other lawful purposes



• Company’s Rights and Dutieso To ensure it controls who speaks on behalf of thecompany.

o To protect itself from unauthorized disclosure of confidential and/or proprietary information.

o To provide a code of conduct for employees’ use of Social Media for professional purposes, if they are authorized.



• Explain permissible and impermissible job‐related uses of Social Media.

• Express importance of truthfulness and accuracy in public postings.

• Require clear demarcations between personal and work presence, with express disclosures of the capacity in which employees may express their viewsonline.



• Identify which employees are and aren’t authorized to use social media on behalf of the company.

• If employees’ association with your company is madeclear, require that their posts be in the first person and contain disclaimer language.o “The opinions expressed herein are solely those of the author and do not represent the views of ACME Atomic.”

• State that employees are personally responsible fortheir personal commentary and posts.

• Address use of company equipment to conductpersonal social media.



• Employees must not reference your company’ssuppliers, clients, business partners, orcustomers.

• Remind employees that the Internet has a longmemory (often impervious to deletion andbeyond their control to keep private).



• Apply the company’s harassment and anti‐discrimination policies to social mediaparticipation.

• Any information posted or sent by an employeemust comply with confidentiality and proprietaryinformation policies or agreements.


Social Media Policies: What NOT to Include

• Statements that prohibit protected activities or discussions by employees about wages, hours, and other terms and conditions of employment.

• This includes “prohibitions” on certain activitiesthat are overly broad or not clear in theirmeaningso Based on rulings from theNLRB (e.g. Boeing)


Social Media Policies: Additional Thoughts

• A “Savings Clause” in the policy is helpful, but may not save the day.o A Savings Clause is a statement that the policy is notintended to limit employees’ right to engage inprotected or other concerted activity under theNational Labor Relations Act.

o Best practices are to include specific examples of protected/concerted activity so it’s clear what conduct is protected


Social Media Policies: Additional Thoughts

• State that the company has the right to monitor social media usage on its systems and/or equipment.

• Caution employees that the company may (or will)monitor the comments, posts, blogs, forums, anddiscussions about the company, its employees, customers, and the industry that employees post on the internet.

• State the employer’s right to discipline for violations of policies or for conduct causing reputational harm.

• Enforcing social media policies can run afoul of Whistleblower and anti‐retaliation protections.


Social Media Policies: Best Practices

• Avoid over breadth• Include specific examples illustrating acceptableand unacceptable conduct

• Do include a savings provision clearly stating thatthe policy is not intended to discourageconcerted activity and again provide specificexamples of conduct that is protected


Social Media in the Workplace

September 24, 2019

Tim WalshPillsbury Winthrop Shaw Pittman [email protected]: 202‐663‐8455

Meghan Claire HammondPillsbury Winthrop Shaw Pittman [email protected]: 202‐663‐8189

social media in the workplace · agenda and #goals •understand the legal framework that governs...

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