Thursday, April 7, 2016

Social Media Update, Part Two

Social media is a significant and increasingly important part of the employer-employee relationship in many workplaces. Employers use social media to establish their employer brand, and to search for and research candidates. A majority of employers surveyed in 2014 report that employee misconduct related to social media has resulted in disciplinary action, and employee discipline can, of course, lead to legal disputes. 
Not surprisingly, the law is struggling to keep up. Late last year, we wrote about employee discipline based on social media activity. Because the law surrounding social media is in flux, we decided it’s time for another update.
There have been some developments related to the issue of whether or not employers are legally responsible if an employee posts negative information about a customer or other third party on social media. In a fascinating case from Hawaii, an employee of a rental car company repeatedly mocked and used derogatory terms about a customer on the employee’s personal Facebook page.  Other employees commented on or liked the posts.  The customer claimed he lost business due to the posts, and sued the rental company. He alleged that the employer should have trained employees not to make such posts, failed to terminate the offending employees in a timely manner, and failed to provide adequate supervision.
A federal judge found that the company owed no duty to the customer in these circumstances.  At first glance this appears to be a clear victory for employers.  It’s important to note, however, that the rental car company’s response to its employees’ behavior may well have influenced the court’s decision to deny the customer’s claims.  When a supervisor became aware of the offending posts, the employees were terminated or allowed to resign. Had the company not taken action, and if the posts were allowed to continue, the decision might have gone the other way. Here, and much to the relief of employers and their lawyers, the court did not establish a standard obligating employers to know what their employees are posting on social media that might cause harm.  We can only hope that carelessness or disinterest when harmful social media posts are brought to an employer’s attention will not lead to a lawsuit with different results.
In another important and recent decision, an administrative law judge for the National Labor Relations Board ruled that Chipotle engaged in an unfair labor practice when it required an employee to remove tweets critical of the restaurant, including a tweet responding to a customer that criticized the restaurant’s pay practices.  The employee was not terminated for his tweets; rather, he was fired over a disruption he caused later.  Nevertheless, his termination was reversed and the judge ruled Chipotle violated the National Labor Relations Act by firing the employee for protected concerted activity.
What is particularly interesting about the Chipotle case is that it appears to expand the definition of protected concerted activity. The terminated employee’s tweets were not directed at other employees, no other employees liked or retweeted them, and there was no evidence that other employees saw them.  The judge found, however, that because the tweets “had the purpose of educating the public,” the employee’s solitary postings resulted in protected concerted activity.  In prior cases, the NLRB has found social media postings to be concerted activity when other employees were involved and either saw the posts or interacted with the posts in some way.  This new decision from the NLRB is one more reason for employers to be cautious in disciplinary actions based on employees’ social media activity. 
In other developments, social media is being touted as an excellent source of information for employers and others seeking to prove workers compensation or disability benefits fraud, and - if Yelp’s recent experience is any indication – employers may have to decide whether or not they want to engage employees in a public debate about employment practices.
We expect the next round of developments to be just around the corner.  We’ll keep you posted.  In the meantime, employers should keep their social media policies updated and compliant, train managers and supervisors how to recognize and deal with social media-related issues, and, above all, pause and think before taking disciplinary action based on social media activity.
Posted by Judy Langevin and Kate Bischoff