Managing Employees on Social Media

First Amendment activists fought back. More than half of the states enacted legislation to prevent “strategic lawsuits against public participation” (SLAPP). Such legislation is now pending in Congress as well. Anti-SLAPP legislation decries and penalizes lawsuits that prevent free speech. Typically, such legislation provides cost-effective mechanisms for an early dismissal of the lawsuit that hinders free, truthful, and non-harassing speech. In addition, it usually allows for recovery of attorneys' fees or court costs. Some states, including California and New York, allow the defendant to SLAPP back by filing counterclaims for compensatory and punitive damages. (See, e.g., California Code of Civil Procedure 425.16-18; New York Civil Rights Law 70-a, 76-a. and New York CPLR 3211(g) and 3212(h).)

Anti-SLAPP legislation strengthened the rights of individuals on the Internet. With the proliferation of social media, individuals went one step further and abandoned much of their personal privacy. Facebook reached more than 500 million users by the end of 2010. As employees speak publicly about the workplace, employers face a dilemma. Should they fire an offending employee who speaks out publicly on the Internet?

The Legal Arena

The answer is complex, influenced by legal issues and public relations considerations. Some employee posts are so egregious that they are obviously not legally protected speech. However, more often than not, the post is not derogatory, racially biased, or harassing. It might just be negative publicity for the brand. If the employer takes disciplinary action or fires the employee, the ensuing public backlash could be even worse for the employer.

In November, 2010, a new development emerged as the National Labor Relations Board (NLRB) filed its first complaint for retaliatory action against an employee based on her Facebook post. This ground-breaking complaint alleged that Respondent American Medical Response of Connecticut (AMRC) had improperly terminated the employee because of her complaints about a supervisor posted on Facebook. The NLRB noted that the company had an overbroad Internet policy that barred employees from “depict[ing] the Company in any way” in conjunction with photographs of themselves on social media sites without express permission. The policy also prohibited employees from making “disparaging ' or defamatory comments” about the employee's superiors. While the outcome of the NLRB/American Medical case was just announced at press time, it nevertheless still suggests that overbroad policies prohibiting social media communications are problematic. It should make employers consider the legal implications of retaliatory action for negative employee posts on social media. (For detailed information on this case, see the article by Shari Lewis in this issue.)

What Should Employers Do?

With social media here to stay and smart mobile devices abounding in offices, employers need to accept that they cannot legally or practically shut down the conversation. While employers themselves embrace social media as a powerful marketing tool, they should simultaneously consider the role of their employees as their online representatives. Instead of prohibiting social media activity altogether (a practice that may sustain legal challenge), companies should allow their employees a social media presence while providing some rules to govern their conversations. Well-written policies prevent public relations disasters and potential legal liability. In addition, when done properly, they also create environments that foster productivity and loyalty among employees. Below are ten concepts to guide employers in managing their employees in social media.

1. Culture

Are you a small company whose employees are under 30 years old and seem permanently attached to their smart phones? Are you a large corporate employer with multiple offices and hundreds or thousands of employees to supervise? Your corporate culture will determine the specificity of your policy, its tone, its contents, and its enforcement policies.

2. Consistency

Provide clear guidance on how to use your trademarks and copyrights consistently on the Internet. Outline appropriate usage of company trademarks and corporate logos. Describe environments in which the brand should not appear (e.g., alcohol, sexual, or other sensitive areas). Also, caution against use of third-party intellectual property without clearance. If marketing to children, delineate rules for compliance with the Children's Online Privacy Protection Act.

3. Transparency

Require employees, third-party bloggers, and marketers to disclose their material connections to your company when posting information about your company. Otherwise, you (and they) may find themselves under investigation by the FTC for violating its Guides on Testimonials and Endorsements.

4. Confidentiality

Take care to protect your confidential information with a clear list of do's and don'ts for employees. This includes any posts about project ideas or meeting locations.

5. Media

Clearly state how employees should handle media contacts. Include a clear statement of how an unauthorized employee should respond if approached by the media. Provide a mechanism for referring such inquiries and for notifying the authorized personnel within the company.

6. Respect

Caution employees about speaking respectfully about your company and fellow employees. You do not want to open yourself to a discrimination or harassment suit.

7. Details

Provide examples throughout your social media policy wherever possible. Employees will understand the protocol of good behavior if you provide real-life examples of prohibited behavior.

8. Separation

Encourage employees to separate their professional and personal social media presence. This means separating Facebook profiles or groups, and not “friending” professional contacts on their personal pages.

9. Training

Provide hands-on training sessions to employees that incorporate active discussions, hypotheticals, and role-playing. These seminars should teach employees how to behave responsibly, and clearly demonstrate what the employer will not tolerate.

10. Monitor

Monitor your employees' online behavior, but think carefully about when to discipline and when to use the social media conversation as a chance to communicate your side of the story. Stay current on the constantly changing legalities before taking disciplinary action. Remember that your policy requires constant updating in the changing world of social media.

Kyle-Beth Hilfer, Esq., specializes in advertising, marketing, promotions, intellectual property and new media law. For more information about her law practice, please visit http://www.kbhilferlaw.com/.

Editor's Note: On Feb. 7, American Medical Response of Connecticut settled the case mentioned in this article. Under the agreement, which was reached one day before a hearing by an administrative law judge was scheduled to begin, American Medical (AM) agreed to revise its “overly broad” social media policies. The employee, Dawnmarie Souza, settled privately with AM. The main issue of the case, i.e., whether employee discussions on
Facebook constitutes concerted activity under labor laws, was not addressed in the settlement. The case remains an important one as a cautionary warning to employers to tread carefully before firing employees for their social media activities.

Your employee is angry with her supervisor and posts a scathing rant on Facebook. Another employee is frustrated with her bonuses and starts an online group for fellow employees to complain about the company's compensation practices. Still another posts photos of himself wearing a hat with the company logo while drinking in a bar. How does the employer manage the online actions of its employees?

In the early days of the Internet, employers were surprised to find employees airing company dirty laundry online. Many employers filed lawsuits against employees, attempting to squelch negative dialogue and intimidate others from speaking out in public. Philosophically, employers were at odds with the Internet. While the Internet thrived on open communication, employers wanted their privacy.

First Amendment activists fought back. More than half of the states enacted legislation to prevent “strategic lawsuits against public participation” (SLAPP). Such legislation is now pending in Congress as well. Anti-SLAPP legislation decries and penalizes lawsuits that prevent free speech. Typically, such legislation provides cost-effective mechanisms for an early dismissal of the lawsuit that hinders free, truthful, and non-harassing speech. In addition, it usually allows for recovery of attorneys' fees or court costs. Some states, including California and New York, allow the defendant to SLAPP back by filing counterclaims for compensatory and punitive damages. (See, e.g., California Code of Civil Procedure 425.16-18; New York Civil Rights Law 70-a, 76-a. and New York CPLR 3211(g) and 3212(h).)

Anti-SLAPP legislation strengthened the rights of individuals on the Internet. With the proliferation of social media, individuals went one step further and abandoned much of their personal privacy. Facebook reached more than 500 million users by the end of 2010. As employees speak publicly about the workplace, employers face a dilemma. Should they fire an offending employee who speaks out publicly on the Internet?

The Legal Arena

The answer is complex, influenced by legal issues and public relations considerations. Some employee posts are so egregious that they are obviously not legally protected speech. However, more often than not, the post is not derogatory, racially biased, or harassing. It might just be negative publicity for the brand. If the employer takes disciplinary action or fires the employee, the ensuing public backlash could be even worse for the employer.

In November, 2010, a new development emerged as the National Labor Relations Board (NLRB) filed its first complaint for retaliatory action against an employee based on her Facebook post. This ground-breaking complaint alleged that Respondent American Medical Response of Connecticut (AMRC) had improperly terminated the employee because of her complaints about a supervisor posted on Facebook. The NLRB noted that the company had an overbroad Internet policy that barred employees from “depict[ing] the Company in any way” in conjunction with photographs of themselves on social media sites without express permission. The policy also prohibited employees from making “disparaging ' or defamatory comments” about the employee's superiors. While the outcome of the NLRB/American Medical case was just announced at press time, it nevertheless still suggests that overbroad policies prohibiting social media communications are problematic. It should make employers consider the legal implications of retaliatory action for negative employee posts on social media. (For detailed information on this case, see the article by Shari Lewis in this issue.)

What Should Employers Do?

With social media here to stay and smart mobile devices abounding in offices, employers need to accept that they cannot legally or practically shut down the conversation. While employers themselves embrace social media as a powerful marketing tool, they should simultaneously consider the role of their employees as their online representatives. Instead of prohibiting social media activity altogether (a practice that may sustain legal challenge), companies should allow their employees a social media presence while providing some rules to govern their conversations. Well-written policies prevent public relations disasters and potential legal liability. In addition, when done properly, they also create environments that foster productivity and loyalty among employees. Below are ten concepts to guide employers in managing their employees in social media.

1. Culture

Are you a small company whose employees are under 30 years old and seem permanently attached to their smart phones? Are you a large corporate employer with multiple offices and hundreds or thousands of employees to supervise? Your corporate culture will determine the specificity of your policy, its tone, its contents, and its enforcement policies.

2. Consistency

Provide clear guidance on how to use your trademarks and copyrights consistently on the Internet. Outline appropriate usage of company trademarks and corporate logos. Describe environments in which the brand should not appear (e.g., alcohol, sexual, or other sensitive areas). Also, caution against use of third-party intellectual property without clearance. If marketing to children, delineate rules for compliance with the Children's Online Privacy Protection Act.

3. Transparency

Require employees, third-party bloggers, and marketers to disclose their material connections to your company when posting information about your company. Otherwise, you (and they) may find themselves under investigation by the FTC for violating its Guides on Testimonials and Endorsements.

4. Confidentiality

Take care to protect your confidential information with a clear list of do's and don'ts for employees. This includes any posts about project ideas or meeting locations.

5. Media

Clearly state how employees should handle media contacts. Include a clear statement of how an unauthorized employee should respond if approached by the media. Provide a mechanism for referring such inquiries and for notifying the authorized personnel within the company.

6. Respect

Caution employees about speaking respectfully about your company and fellow employees. You do not want to open yourself to a discrimination or harassment suit.

7. Details

Provide examples throughout your social media policy wherever possible. Employees will understand the protocol of good behavior if you provide real-life examples of prohibited behavior.

8. Separation

Encourage employees to separate their professional and personal social media presence. This means separating Facebook profiles or groups, and not “friending” professional contacts on their personal pages.

9. Training

Provide hands-on training sessions to employees that incorporate active discussions, hypotheticals, and role-playing. These seminars should teach employees how to behave responsibly, and clearly demonstrate what the employer will not tolerate.

10. Monitor

Monitor your employees' online behavior, but think carefully about when to discipline and when to use the social media conversation as a chance to communicate your side of the story. Stay current on the constantly changing legalities before taking disciplinary action. Remember that your policy requires constant updating in the changing world of social media.

Kyle-Beth Hilfer, Esq., specializes in advertising, marketing, promotions, intellectual property and new media law. For more information about her law practice, please visit http://www.kbhilferlaw.com/.