RECENT UPDATES IN EMPLOYMENT-RELATED SOCIAL MEDIA LAW by Thomas J. Lloyd III

01-Jun-2017

RECENT UPDATES IN EMPLOYMENT-RELATED SOCIAL MEDIA LAW

by Thomas J. Lloyd III

A couple of years ago, we wrote an article for this column discussing the evolving issue of employment-based social media policies in the wake of an Idaho Supreme Court decision that had, at the time, been recently issued. Since that time, social media has continued to become even more widespread, and the legal issues surrounding the interplay between employment and private social media engagement has continued to develop. In view of some of those developments, we are revisiting the issue and examining more recent case law on the subject.

Can an Employer Legally Regulate Its Employees’ Use of Social Media?

Recently, I have been asked several times by HR professionals about whether employees’ private use of social media is even something that an employer can have any control over. Although this is a topic that we have covered before, it is worth revisiting in order to dispel the fairly common misconception that employers are powerless to protect themselves against potentially-devastating business problems that can be caused by employees who either fail to see the gravity of their social media activity, or who erroneously believe that they are free to post anything and everything on their own social media pages.

As with most workplace issues, regulation of employees’ private social media use is a topic that warrants a proactive approach, rather than a reactive one. In Talbot v. Desert View Care Center (2014), the Idaho Supreme Court decided that a well-crafted social media policy could provide a standard of conduct that, if breached by an employee, would provide adequate cause for termination and for denying unemployment benefits. Although the Court was not directly asked to answer the question of whether social media policies are enforceable as against postings made during an employee’s non-working hours, the Court’s decision denying unemployment benefits on account of the employee’s social media activity while he was at home necessarily implies that such policies are enforceable.

Employees are a company’s most identifiable ambassadors to the public. That means that an employee’s social media activity, both at home and on the job, creates a lens through which the public is able to see any number of things about the company – i.e. how the company treats its employees, the quality of the products or services sold, the workmanship of the employees, and various other insights.  There is an immense amount of opportunity for a company to benefit from its employees’ use of social media. Of course, the other side of that coin is that there is an immense amount of opportunity for the business to be harmed.

An effective social media policy should therefore be tailor made to reflect the interests and values of the company. Businesses should invest the time to strategize, in conjunction with HR professionals and legal counsel, the best policy for its individual needs.  For some companies, that may mean encouraging positive social media use that helps develop the brand, promotes collaboration with industry partners, and otherwise demonstrates the business’s dynamic web presence. For others, however, it may mean placing varying degrees of restriction on social media activity, potentially even to the point of outright prohibiting employees from identifying themselves as an employee on any social media platform. It may even make sense for one company to have multiple social media policies, such that certain departments or job types have a policy that differs from others.

With the ever-increasing prevalence of social media in our daily lives, be it Facebook, Twitter, Instagram, or any of the multiple other platforms, there has been a permanent shift in the way we typically interact with family, friends, coworkers, and the general public. Businesses must recognize that shift and make an informed decision about how to use it, or how to avoid it, in order to protect the best interests of the company. In doing so, as the Second Circuit Court of Appeals recently addressed, there is at least one area in which to proceed with great caution. We will examine the facts and findings of that case in the next section.

National Labor Relations Board v. Pier Sixty, LLC

In April, 2017, the Second Circuit Court of Appeals issued its decision in National Labor Relations Board v. Pier Sixty, LLC, addressing the limits of protected social media activity in the context of the National Labor Relations Act (“NLRA”). Although union activity is typically limited in Idaho, lessons from the Second Circuit’s decision in Pier Sixty are worthy of consideration. Whether employees are situated in New York or in Idaho, the provisions of the NLRA apply equally to activity that is protected by Section 7 of the Act, or “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The facts giving rise to Pier Sixty involve, as one might imagine in the context of this article, an angry employee, a Facebook post, and a subsequent adverse employment action by the employer. In 2011, the employees of Pier Sixty, a catering company in New York, had been exploring the prospect of unionizing, which was not well-received by the company. The Second Circuit described it as a “tense organizing campaign that included threats from management that employees could be penalized or discharged for union activities” – conduct that is indisputably in violation of the employee protections afforded by the NLRA. In the subsequent action taken by the National Labor Relations Board (“NLRB”), Pier Sixty did not contest that it had engaged in wrongful conduct in this sense.

Pier Sixty did, however, contest the NLRB’s determination that it had violated the provisions of the NLRA with respect to one employee’s conduct. Hernan Perez was working as a server for Pier Sixty during the organizing campaign, and was subjected to the adversarial nature of the relationship between the management and the employees. Two days before the time scheduled for the employees to vote on unionizing, Perez was working an event for Pier Sixty. One of his supervisors, Robert McSweeney, was also working the event, and was continuing with the company’s practice of disrespecting its employees. Upset by this treatment, during his next authorized break, Perez used his phone to post the following on his Facebook page:

Bob is such a NASTY MOTHER ****** don’t know how to talk to people!!!!!! **** his mother and his entire *******family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was available to his Facebook friends, which included ten of his coworkers from Pier Sixty, and was also available for public viewing. Pier Sixty’s management became aware of the post before Perez took it down, and proceeded to terminate Perez as a result.

These facts perfectly frame the conflict between an employer’s interest in protecting the company through regulation of potentially adverse social media exposure, and the employer’s obligation to remain neutral so as to not interfere with employees’ protected rights under the NLRA. While businesses can and should establish social media policies, they must be careful not to impede upon the employee protections afforded by the NLRA, given the very nature of “social” media. Pier Sixty apparently had no such policy in place, but Perez’s final comment encouraging his coworkers to “Vote YES for the UNION” brings the NLRA into play in ways that even the best social media policy may not be able to protect against.

In its defense against the ensuing action initiated by the NLRB for Perez’s termination, Pier Sixty argued that although Perez made a call to unionize at the end of his post, the rest of the message was so egregious as to effectively nullify his rights under the NLRA. As the Second Circuit described, “even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protections of the NLRA.” The question that the Second Circuit therefore had to answer was whether Perez’s conduct was so abusive, or so “opprobrious,” that the NLRA would not protect him.

Up until the past couple of years, the test used by the courts to evaluate whether an employee’s use of obscenities in the workplace still warranted NLRA protection considered four elements: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices.

In Pier Sixty, however, the Second Circuit followed a more recent trend in case law, which aims to give greater consideration to the employer’s interests in preventing employee outbursts in the presence of the public, as well as guidance from the NLRB’s General Counsel on conduct via social media. The test the Second Circuit ultimately used to evaluate Perez’s Facebook post was a nine-factor “totality of the circumstances” test: (1) whether there is evidence of anti-union hostility by the employer; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense.

Ultimately, the Second Circuit decided, using these nine factors, that the protections of the NLRA extended to the content of Perez’s Facebook post: “[E]ven though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the subject matter of the message included workplace concerns” that had arisen in a highly hostile and anti-union workplace environment. Notably, with respect to the eighth factor, the Court does not identify any specific rule that Pier Sixty had in place prohibiting the content at issue, implying that Pier Sixty did not have a social media policy applicable to Perez. Although it is likely impossible to craft a social media policy that can completely quash concerted activity online, a well-crafted policy would have put Pier Sixty in a better position to argue that its termination of Perez was for a violation of that policy, rather than for his union organizing.

Takeaway

Pier Sixty provides a very good example of the dangers involved with the interplay of the employment relationship and online social media culture. The lesson for employers is that social media is a dangerous and uncertain area of evolving law, which even the courts are still attempting to navigate in ways that sufficiently take into account the competing interests at stake. In all events, companies hoping to stay ahead of the curve are wise to actively engage their HR professionals and legal counsel on an ongoing basis to ensure that the company policy is up to date, providing the best possible protection available under the prevailing laws and regulations.