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Social Media and the Workplace

With the increasing use of social media in our society, I find myself more and more counseling business clients on issues arising from the use of social media by their employees.  We still, of course, have the standard range of employment law issues, such as wrongful discharge, employee leaves, disability discrimination, and workplace harassment.  However, social media issues have become increasingly more prominent in the workplace.

Indeed, the social media explosion is impacting almost all aspects of modern life, and the workplace is no exception. Quite the contrary, the burgeoning use of social media in the workplace creates significant legal questions. Internet outlets such as Facebook, Twitter, and You Tube allow employees to network and collaborate in ways not done before. However, these advancements in communication do not come without price. Managers and employees are now faced with uncertainty over what is considered to be private and exclusive from the workplace, and what online behavior can be grounds for discipline in the workplace or further legal action. 

For example, employee’s often harbor the misconception that they have an absolute right to “freedom of speech” in their usage of social media during the workday and outside of the workday.  When I handled my first employee termination, for acts committed via Facebook, the employee’s initial response to my client’s human resource officer was to express outrage over the alleged infringement of her right to free speech.  Simply put, in the private sector, no such right exists.  To state a claim of freedom of speech one must, among other things, have government action involved.

When an employee crosses over the bridge into prohibited conduct against an employer, it usually involves a posting, blog, or electronic communication that adversely affects the interests or reputation of the employer.  One such memorable moment occurred in 2008 when cabin crew members engaged in a forum discussion on Facebook regarding their company and its passengers.  The Guardian newspaper reported that the employees’ discussions brought the company into “disrepute” and “insulted” passengers.  The company fired the employees.  In April 2011, an employee of Lloyds Banking Group was fired for sarcastic comments she made on Facebook regarding a superior’s salary. (Reported by News.com.au by Robert Burton Bradley)

The common thread associated with an employer’s reaction to an employee’s misuse of social media is based on the doctrine of the duty of loyalty.  The basic principle is that an employee has a duty preventing the employee from acting, during the employment relationship, in a manner contrary to the employer’s interest.  Chernow v. Reyes, 239 N.J. Super. 201, 204 (App. Div.); certif. denied, 122 N.J. 184 (1990).

Moreover, employers must be sensitive to those situations where employees violate company policies through the use of social media – but outside of the workplace.  For example, if an employer has knowledge that an employee is engaging in conduct on Facebook or MySpace -- but outside of the workplace -- that violates the company’s unlawful workplace harassment policy, the company nevertheless has a legal obligation to act. 

I have stressed to my clients the need to be proactive in the ever developing area of social media usage.  In that regard, I have developed social media policies and conducted in-house training for companies.  This training not only addresses the typical employee misconceptions but sets forth in concrete detail what the employee’s obligations are with respect to the use of social media and its impact in the workplace.

For those employers that have union employees, of course, matters get far more complicated.  Aside from the nation wide attention given to the National Labor Relations Board’s (“NLRB”) complaint against the Boeing Co. regarding its Charleston, S.C. plant, the NLRB has also announced its view on a “union” employee’s use of social media.  The NLRB issued a complaint against American Medical Response after the company fired an employee for statements made on Facebook about her boss.  [The lawsuit later settled.]  My tip for employers dealing with a union employee’s use of social media?  Talk to your labor attorney.

I have practiced labor and employment law for over twenty years, and I remember when the first cell phone was marketed to the general public.  It is an exciting time to work in a field being impacted by a technology that is here to stay  -- social media.

About the Author

Sean D. Dias is Counsel at Scarinci Hollenbeck.  He advises clients and speaks on the subject of social media policy and employment and labor law.  In addition to Sean’s work with social media, he serves as counsel to corporations, counties, educational institutions and numerous municipalities on issues concerning wrongful discharge, discrimination claims, employee leaves, wage and hour compliance, employee discipline, ADA compliance, labor negotiations, workplace harassment, school anti-bullying compliance, drug testing and other employment matters.

For more information regarding social media legal issues or other labor or employment questions feel free to contact:

Sean D. Dias

Counsel


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