Some Legal Implications of Social Media in Business

Many businesses, especially relatively small ones, use social media as an avenue for free and widespread advertising and exposure.  Information on social media sites can potentially extend to millions of people, therefore smaller businesses have the opportunity to advertise alongside large corporations for very little or no cost.  The opportunities presented by social media and the internet should not be passed up, however businesses need to be aware of the legal risks and implications that may accompany the use of social media in the workplace.  The following are some legal issues that arise out of social media use by a business.

Vicarious Liability

Business owners often enlist the help of one or more employees to implement social media campaigns and manage the company’s social media presence.  However, even qualified and responsible employees may accidentally post something that may incite a lawsuit for defamation, copyright infringement, invasion of privacy, among other reasons.  Employees without legal knowledge may not realize the wrongfulness of their actions.  However, whether the post was unintentional or whether or not the employee had permissions for the post may not shield a business from liability if the employee was carrying out a work-related task.  Businesses should therefore have clear policies and guidelines for any posts by employees published on behalf of the company.

Ownership Disputes

If you are an employee who posts on behalf of your employer, you may gain a popular and/or regular following for blogs, Facebook, or Twitter posts.  If you decide to leave the company, you may wish to take your online followers and content that you have created with you.  Many companies will not allow you to do this for fear of losing customers.  Therefore, many employees in this situation find themselves in a legal ownership battle with their former employers.  If you are charged with creating original and popular content for social media or other websites, make sure you know your employer’s policy on ownership before you hand over any valuable material.

Litigation Evidence

If your company or any employees become involved in a lawsuit, online content may be admissible against you under the category of electronic business records.  Such online content may include blog articles, emails, status updates, video posts, instant messages, Tweets, etc.  Furthermore, if you are an employee or former employee bringing legal action against your employer, that employer may be penalized by the court for improper record retention if they delete any relevant online content.

These are only a few of the legal risks that come with social media usage for both employers and employees.  If a company allows employees to post on social media on its behalf, the best policy to is thoroughly train the employee on social media procedures and limitations.  If you are an employee who regularly manages your employer’s social media presence, it is always a good idea to have a very clear understanding of the company’s policies in order to avoid future conflict. Most importantly, if you are involved in a dispute with your employer that you may escalate to legal action, always call an experienced employment attorney at Pershing Square Law Firm for help.

Workplace Social Media Policies Cannot be Overbroad

As social media sites gained popularity, employers often disciplined or terminated employees who made negative remarks regarding their workplace online.  In fact, many companies instituted policies that specifically limited the kind of information that employees could post on their personal social media profiles.  Violating these policies has resulted in terminations, and many former employees have brought cases claiming they were wrongfully terminated in violation of their rights to free speech.

Traditionally, employees have had the legal right to discuss workplace matters or express dissatisfactions with one another.  This type of expression used to happen in company cafeterias or at work happy hours, however in recent years, social media has largely become the new “water cooler.”  Many Americans who have social media profiles are connected or “friends” with fellow co-workers online.  Often times, one disgruntled employee may complain about the workplace on a status update and other employees will chime in by commenting or re-posting.  This situation has become commonplace.  However, a large number of companies had put in place social media policies that generally prohibited employees from discussing company matters or from making disparaging comments regarding the company, managers, or co-workers online.

Recent NLRB Advice

This situation is illustrated by a recent case examined by the National Labor Relations Board 

(NLRB) regarding employees of a non-profit company in New York.  One employee had taken to Facebook to complain about working conditions and several other colleagues posted angry comments in agreement.  The company fired five of the employees involved for the Facebook activity.  The NLRB found that the employees were wrongfully terminated for concerted activity that is protected by the National Labor Relations Act (NLRA).  Even though these employees were not in a union, the NLRB said these protections expand to non-unionized private sector employees, as well.

The NLRB issued an advice memo that seems to apply traditional rules of what employees may or may not say to online territory.  The NLRB warned companies that overbroad social media policies will infringe on employees’ rights to criticize work conditions or treatment of employees.  For example, General Motors’ policy prohibited “offensive, demeaning, abusive or inappropriate remarks,” and Costco’s policy disallowed any comments that “damage the company” or “any person’s reputation.”  The NLRB found that such policies prohibited a broad spectrum of possible online communications that employees have the right to engage in under the NLRA.

Furthermore, companies cannot simply disallow the posting of “confidential information,” without further specifying which types of information are considered to fall into that category.  Instead, the policy should state exactly what kind of information is prohibited, such as trade secrets, client information, unreleased product information, or private health details.

Many companies are complaining that the NLRB is applying concerted activity rights typically associated with unions to the private sector in general, however the NLRB responded that all employees have these free speech rights and the rights to converse with fellow co-workers regarding their employer.  These rights do not change simply because the conversation takes place online and not in person.

If you believe your employer has infringed upon your social media rights, contact Pershing Square Law Firm today.

Employers Must Watch Out for Workplace Cyber-Bullying

Cyber-bullying is the use of the Internet or related technology to harass, stalk, or otherwise harm other people.  While most cyber-bullying headlines tend to involve school-aged children and teens, adults are not at all immune to being the target of cruel online activity.  Employees may post Facebook status updates, tweets, or blog entries that disparage other co-workers, and other employees may then (and often do) chime in on the discussion by commenting or replying.  If this type of behavior is repetitive or causes emotional distress to its victim, it could constitute online harassment.  Though this online activity may take place on personal accounts or even after work hours, an employer may still find itself facing liability for harassment under certain circumstances.

Espinoza v. County of Orange

A Court of Appeals of California decided a case last year that demonstrated how an employer may be held responsible for certain types of online harassment.  Ralph Espinoza was born with no fingers on his right hand and often kept his hand in his pocket out of self-consciousness.  Despite his disability, Espinoza was fully capable of performing all of his job duties as a juvenile corrections officer for the County of Orange.

In August of 2006, fellow co-workers anonymously created two personal blogs from a personal computer that targeted Espinoza.  The blog referred to him as the “one handed bandit,” referred to his right hand as “the claw,” and offered a cash reward for pictures of his hand.  Different employees began regularly accessing the blog from work computers and also contributing to the blog by commenting or creating their own posts using fictitious names.  The harassment began to extend beyond the blog, as Espinoza reported coworkers regularly taunting him, mocking him, and otherwise acting with hostility.  Furthermore, the word “claw” was written throughout his work space and his car was keyed. 

Espinoza had reported the activity numerous times, and the County of Orange did not initiate an adequate investigation or meet with Espinoza for over a year.  In the meantime, the harassment caused Espinoza to have medical problems that required him to take medical leave.  When he tried to return from leave, he had been replaced and opted not to work there in any capacity.

When Espinoza filed suit for harassment and retaliation, the County of Orange argued that it was not liable because the harassment on the blog took place on a personal account and was created outside of the workplace.  However, the court therefore rejected that argument and stated an employer is liable for the conduct of non-supervisory employees if the employer was, or should have been, aware of harassment and did not take remedial measures.  Since the employer did not take action for an extended period of time, it was liable for the harassment and Espinoza was awarded $820,000.

This is only one example of why employers should pay attention to any potential workplace cyber-bullying, even if it takes place on personal account or after work hours.  If you have any question regarding social media in the workplace, contact the Pershing Square Law Firm for help.

California Law Protects Employees’ Social Media Privacy

In the past, employers commonly used social media to get a glimpse into the behaviors of their applicants and monitor any possible employee misconduct.  In recent years, however, employers have had a much more difficult time accessing information about their employees online as social media users began utilizing strict privacy settings on their profiles. 

To get around these privacy settings, many employers were requesting—or demanding—usernames and passwords for their employees’ social media profiles or accounts in order to access their personal information.  State legislators across the United States have been recognizing the need to protect employees against this invasion of online privacy.  The large majority of states have pending legislation related to online privacy and the Password Protection Act of 2013 has been introduced to the United States House of Representatives on the federal level.  California became one of the first states to pass such a law in 2012, and Section 980 of the Labor Code went into effect on January 1, 2013.

How Section 980 Affects Employers

California law now prohibits employers from demanding usernames or passwords for personal social media accounts from applicants or employees.  The law states that “social media” is defined as any electronic service or account, or electronic content.  This definition includes, but is not limited to:

●     Videos

●     Still photographs

●     Blogs

●     Video blogs

●     Podcasts

●     Instant messages

●     Text messages

●     Email messages

●     Online services or accounts

●     Internet profiles on sites such as Facebook, Twitter, LinkedIn, Pinterest, Tumblr, or Instagram

In addition to passwords and usernames, the law also protects any information related to an applicant or employee’s personal social media presence, such as the content of blogs or status messages.  Furthermore, under California law, employers may not demand that an applicant or employee access their own social media profile or site in the presence of the employer or a supervisor so that the employer may view the content of the personal social media account.  Finally, it is unlawful for an employer to discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an applicant or employee for refusing to produce social media usernames and passwords or to divulge any personal social media content.

When an Employer may Access Social Media

There are two major exceptions to the law, however, that allow employers to access private employee social media accounts under limited circumstances.  First, an employer may request that an employee divulge social media information if it is relevant to an investigation of alleged violations of law or other employee misconduct.  In this case, the information obtained may only be used for purposes of the investigation and nothing more.  Second, employers retain the right to request usernames, passwords, or other information necessary to access any electronic devices issued by the employer, such as computers, PDAs, or company email accounts.

As of now, Section 980 of the Labor Code only applies to private employers, however A.B. 25 is currently making its way through the state legislature and proposes the law also apply to public employers in California.  If you believe your employer has unlawfully requested personal social media information or retaliated against you, you should contact Pershing Square Law Firm to help protect your rights.

Facebook “Like” is Not a Valid Reason for Termination

An employee cannot be terminated for engaging in activities that are protected by public policy.  Such protected activities include refusing to violate a law, engaging in a legal duty such as jury duty, or exercising a legal or constitutional right.  If an employer fires an employee for any of these reasons, the employee likely has a case for wrongful termination.

Recent Case

Recently, former employees of the Sheriff’s Office in the City of Hampton, Virginia filed a lawsuit alleging they were wrongfully terminated after exercising their constitutional rights.  The plaintiffs included former deputy sheriff Daniel Ray Carter, Jr. and his former co-workers.  They worked for the office during an election in which the incumbent sheriff, B.J. Roberts, was running.  The employees each “liked” the campaign page of Sheriff Brown’s election opponent, which angered the sheriff.  In a speech to the office, the Brown told his employees that he knew of their support for his adversary as demonstrated by their Facebook activity.  The Brown also threatened that, if he were re-elected, any of his opponent’s supporters would lose their jobs.

Sheriff Brown ultimately won his reelection and subsequently terminated each of his employees who had “liked” his opponent’s Facebook page.  Carter and his now former co-workers filed a lawsuit against the Sheriff’s Office, alleging they had been wrongfully terminated in violation of public policy.  Specifically, they alleged they were fired for exercising their rights of free speech protected by the First Amendment of the United States Constitution.

The Court Decisions

At the trial level, the court found for the Sheriff’s Office.  The court reasoned that clicking a single button to “like” a Facebook page was not sufficient activity to qualify as protected speech.  Previous court decisions had held that expressions on Facebook statuses and the like did qualify as speech under the First Amendment, however the district court in this case stated there was a clear distinction between publishing a status message with words and a single click of a mouse.

The case was appealed to the United States Court of Appeals for the Fourth Circuit, which overturned the decision of the lower court.  The circuit court stated that when a person “likes” a particular Facebook page, their “like” is communicated to all of their Facebook connections in several ways through notifications, newsfeeds, and on their own profile page.  Therefore, the court decided “liking” a political page is akin to showing support for a campaign in other ways, such as placing a political sign in your front yard.  Therefore, a click of a mouse to “like” a page could be considered protected political speech under the First Amendment and would then be wrongful grounds for termination.

This precedent sends a warning to employers that they may not simply fire employees for disagreeing or disliking certain online activities, such as “liking” something on Facebook.  Furthermore, activity on social media sites is becoming increasingly protected activity in general.  If you believe you have been wrongfully terminated for protected activity or any other reason, it is important that you contact an employment attorney at Pershing Square Law Firm to discuss a possible case.