Admit it, you have checked your Facebook or Tweeted something on your phone while you are at work. I bet you are even doing it now as you read this blog! There are some legitimate concerns that an employer, employee, and in general people should be concerned about when working and using social media. Your boss may use social media at work, but it may be a part of their job. For you, it may be a different story. What can an employee do with their social media accounts on the job? Off the job?
In this post I will discuss what an employee can expect out of an employer's social media policy, some of the laws surrounding social media policy, and the limitations of a policy.
Handbooks and Social Media Policy
Most workplaces have an electronic communications, e-mail and internet usage, or some kind of policy in their handbooks that deals with communications in the digital age. An employee should be aware what the company’s policies are regarding their behavior when it comes to using social media, and often it will be in the handbook. For an employer, they should be aware that crafting a social media policy is not always easy and should read the following posts in this series where I will discuss crafting such a policy.
In addition, remember from the prior post that Hawaii is an employment-at-will state. So long as the employer does not fire the employee under protected statuses or activities they can choose any reason or no reason at all to fire you. Therefore, if they do not want you texting, checking your Facebook, and/or Tweeting about how the surf is up on company time and resources (i.e. their computers) then you should not be. They can fire you for breaking workplace policy and just because they do not like that behavior.
Employee Must Remain Loyal to their Employer
An employee should be loyal to their employer. This legal concept has a clear foundation in common law, meaning its been around a while, and a generally accepted view in the legal system. Specifically, an employee has a duty to act for the sole benefit for his or her employer while engaged in any conduct related to employment. Generally, social media enters into this equation when it comes to the sharing of company trade secrets and confidential information.
Trade Secrets, NDAs, Non-competes and Customer Lists
What is a trade secret? It is a formula, practice, process, design, instrument, pattern or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.
While an employee is working for an employer they should be loyal, and not be utilizing information they are entrusted with to the detriment of their employer. To strengthen this concept, employers typically have employees sign Non-Disclosure Agreements (NDA) and Non-Compete Agreements. An obvious violation of the law and these types of agreements would be if an employee responsible for mixing delicious island pineapple soda, then posted the secret formula on their Facebook for all their friends to be able to make for potluck at the beach.
However, the situation becomes a little bit more unclear when it has to do with customer lists and the connections made through social media. Recently, two cases touched upon this issue. The general situation of both cases was an ex-employee would gather information about clients and then leave their job for a competitor. They would retain that client information and bring it with them to their new job. The issue that the courts never fully dealt with was that it was through their use of social media, LinkedIn, that they were able to keep this client information.
Businesses usually like to keep their customer/client lists protected, partly for the clients' privacy, but more for the fact that the business used resources and put together information to keep those clients. Specifically, with LinkedIn, the service is designed to create connections and for the most part the information about the "links" or "connections" are freely accessible. In the past, employees that were leaving would turn in their files, Rolodex, Blackberry, etc . . . . keeping no company information, but with LinkedIn, your account stays with you.
For the employer, you should draft a well coordinated social media policy based on your company's industry and use of information. For the employee, read the handbook policy, any non-disclosure, non-compete, and non-solicitation agreements you sign. The general rule of thumb that both parties should be aware of is if the information is readily accessible, easily attainable, and anyone can find it, then it will be less likely to be considered a protected trade secret. That being said companies should still take active steps to protect any information they gather.
What About Complaints about the Company or Bashing the Boss?
So you hate your boss and like complain about him on Twitter? Can he fire you? Are you being disloyal? This is where the legal water is still a little murky. Recently, the National Relations Labor Board (NLRB) has filed a string of complaints against company’s that have sacked employees based on their social media posts. Specifically, the contents of these posts constitute protected activities, as asserted by the NLRB. Oh good, I don't have a union, you must be thinking. No, sorry, rights of employees (union or non-union) are still under the NLRB's power.
In one situation an employee was fired for basically calling her boss a psych patient on her Facebook page. The company subsequently fired her, citing their blogging and Internet posting policy. However, the policy was considered overboard and specifically:
contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.
"Protected concerted activity" means the following: discussion of wages, working conditions, and employment related matters and employees are allowed to post, blog or Tweet their opinions on such things, even though the boss or company may not like what you are saying. However, what does that mean?
In the following situation the NLRB sided with the employer, a newspaper, who fired a reported for posting inappropriate and offensive Twitter. The NLRB felt that the remarks of the reporter did not involve protected concerted activity. If you as an employee, post offensive and inappropriate comments that are not work-related, then it is okay to let you go.
However, during the disciplinary meetings management also gave the following restrictions:
- to stop airing his grievances or commenting about the employer in any public forum; and
- to not Tweet about anything work related; and
- to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.
Ultimately, the NLRB sided with the employer because the newspaper had fired the reporter for Tweeting offensive remarks. However, the NLRB made clear that if any of these prohibitions were to appear in a social media policy they would be an unlawful restriction and constitute a violation the employee's rights. As an employer, do you have some of this kind of broad language in your social media policy? What are you to do?
See you next time on Social Media and the Law!
*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.