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Apr 11, 2016

The Importance of Social Media Policies

By: Allison Mann

Social media has become an integral part of the lives of many Americans. One of the most popular platforms is Facebook. In the words of New York Magistrate Judge James P. O’Hara: “‘Facebook,’ for technophobes or anyone else not among its currently reported 1.1 billion users worldwide, is a free Internet-based social networking website that allows registered users to create profiles, upload photographs and videos, send messages, and keep in touch with friends, family, and colleagues.” Facebook is not alone in the world of popular social media sites, and has been joined by other platforms such as Twitter, LinkedIn, MySpace, and Google+.

The rapid advancement of technology and the emergence of new modes of communication has had far-reaching effects in the legal and business sectors, not the least of which is the world of human resource professionals. It is almost a guaranty that your employees are active on at least one social networking site, and are likely connected to an audience of hundreds if not thousands of people. Companies have recently become more aware of the potential liability that exists if even one employee makes an unfavorable post on social media.

The following examples show why human resources departments must be prepared to confront social media issues in the future by detailing two problems that are becoming more and more common: (1) a company being sued because of statements made on an employee’s social media page; and (2) a company being sued by its employees for suppressing their voice on social media.

Liability for Employees’ Comments: Howard v. Hertz

In this case, a Hawaiian federal court was presented with the issue of whether an employer could be held liable for defamatory statements one of its employees made on Facebook about a customer.

The plaintiff here alleged that a Hertz employee made derogatory statements about his “race, sexual orientation, and financial state and condition,” and that Hertz should be held responsible because of its negligence in supervising, retaining and training that employee. In essence, plaintiff argued that Hertz knew or should have known that its employee was prone to making these types of statements, and that Hertz should have done something to prevent it. In support of its position, Plaintiff pointed to two other instances, made a couple years prior, where the employee made offensive comments on social media—one about a customer and one about a Hertz manager. Hertz was aware of the comment about the manager, but not about the other customer.

The court’s analysis centered on whether Hertz should have foreseen this conduct from this particular employee. It found that if these negative comments were reasonably foreseeable by the employer, that the employer owed a duty to protect its customers. The court found that it was not reasonably foreseeable that the employee would make such “indisputably despicable” comments about plaintiff. It was important to the court’s analysis that the supervisor did not know, and could not have known about the previous comment about the customer, because the supervisor was not “friends” with the employee on Facebook. Another important fact was that the employee’s supervisor had appropriately reprimanded the employee for the comment about the manager.

This case marks a victory for employers, but not an absolute victory. The verdict was very fact sensitive, and Hertz had rather favorable facts because it handled the case very well. This case does not mean that an employer cannot be held liable for its employees’ offensive comments on social media. Another employer presented with a similar lawsuit may not be so fortunate.

Penalizing Employees for Negative Publicity: NLRB Decisions

The National Labor Relations Board (NLRB) has taken a specific interest in employer policing of its employees’ media activities in order to ensure that employers are not suppressing concerted employee activity.

One example comes out of the Eighth Circuit, originally arising in Minnesota. Jimmy John’s employees had been attempting unionization, which failed in 2010. One of the rallying issues in that attempt was lack of paid sick leave. Employees continued to pursue paid sick leave after unionization failed. Several Jimmy Johns employees began a marketing campaign insinuating that eating at Jimmy John’s was unsanitary because its employees are forced to work while they are sick. Employees posted posters around the stores and published press releases in many different media outlets.

In response, one of the Jimmy John’s owners made a Facebook post discouraging the campaign and calling the statements defamatory. Also, several Jimmy John’s supervisors posted anti-union comments to Facebook. The employees posting the signs were eventually fired for disparaging the company.

That’s where the NLRB came in. It found that Jimmy John’s actions discouraging the signs violated employee rights to engage in concerted activity, and the Eight Circuit agreed. Any action by an employer that reasonably tends to interfere with an employee’s exercise of an employee’s right to concerted activity is a violation of the NLRA. However, the Eighth Circuit decision was not unanimous. The dissent would have protected Jimmy John’s right to defend itself from defamation.

In a similar case, the NLRB found a violation of the NLRA where an employer requested that an employee delete comments disparaging the employer for its low wages and lack of personal leave the employee posted on Twitter. The employee’s comments were not directed at other employees of the company or a part of any unionization attempt—the employee was merely blowing off steam. However, the NLRB still classified it as “concerted activity” under the NLRA and faulted the company for its request.

The Takeaway: Be Prepared

These are just two examples of why addressing social media is important to modern business. It is not something that an HR professional can afford to ignore. Those examples also show that an employer must tread a very fine line between protecting itself, its customers and its employees when crafting a social media policy.

The following are some considerations HR professionals should take into account:, companies should consider implementing a multi-faceted social media policy:

    1. Publish a written policy for employees detailing what type of information is and is not appropriate to post on social media. However, the policy should be tolerant of potential negative employee views.

    2. Enact a comprehensive plan for how you and other HR professionals at the company will address social media issues when they arise. Include complaint and investigation procedures along with proposed penalties for violation of the policy.

    3. Address social media policies in employee and manager training. Make sure to tell employees why this policy is important, and make sure managers know how to address issues when they arise.

As the above cases illustrate, social media issues are complicated and can be very fact sensitive. Employers are well advised to seek legal counsel to assist in creating a comprehensive social media plan, and when confronted with specific issues that may arise.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.

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I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the April, 2016 Southwest Area Human Resource Association newsletter.