by Jane Rubinsky
Francine Esposito is a partner in the Labor and Employment Practice Group at Day Pitney LLP. She has extensive experience representing employers in every aspect of labor and employment law, and regularly provides advice to employers regarding all angles of the employment relationship. Prior to joining Day Pitney, she was a partner at Fox Rothschild LLP and at the labor law boutique of Grotta Glassman & Hoffman. Esposito provides some eye-opening advice for employers and HR departments on how to avoid possible unintended legal consequences from their employees’ use of social media.
Does your company have a Facebook page? If you said no, you’d better check, advises labor and employment lawyer Francine Esposito — because Facebook has probably created one for you. Before Esposito’s law firm decided to create a Facebook page, they discovered that they already had one, which even featured their logo. “We did write Facebook a nasty letter from one of our intellectual property lawyers about unauthorized use of our logo to create a page that suggested it was ours, saying that they needed to take it down, which they immediately did,” Esposito recalls.
If even Facebook can get into legal trouble using Facebook, think about how tricky it might be for the rest of us. “Everybody’s getting involved and thinks that social media is so wonderful, and it is, and it certainly has a place,” says Esposito. “But we have to understand the downsides. I’m probably going to scare you to death, because that’s what lawyers do,” she laughs.
Whether or not your company is actively involved on Facebook, Twitter, and other forms of social media, you can bet your employees are. Some studies suggest that employees are spending up to four hours a day at work looking at social media for non-business purposes. At the very least, it’s an issue of productivity. “Whether you let them do it on your company computers or they’re using their smartphones, they’re doing it,” Esposito insists. “A lot of you do allow social media on your computers because young people expect it and you don’t want to be overly controlling of your employees. But some liability may come with that.”
The law has been developing so rapidly that, if you haven’t revised your social media policy within six months, it’s probably illegal and out of date.
A significant percentage of companies don’t even have a social media policy, and Esposito recommends establishing one immediately. “It’s not enough to just Google ‘social media policy’ and put one in place,” she points out. “The law has been developing so rapidly as to what you can and cannot have in your social media policy that, if you haven’t revised it within six months, it’s probably illegal and out of date. The National Labor Relations Board continually comes out with new cases.”
Unionized Or Not, Labor Laws Still Apply
Traditionally, most employers who don’t have a union haven’t concerned themselves with the National Labor Relations Board. But this governmental entity is charged with overseeing the National Labor Relations Act, which does apply to all employers, unionized or not. Your employees have the right to band together for their collective good, Esposito points out, especially when it comes to the terms and conditions of their employment. If you do anything that penalizes your employees for this, you will violate the National Labor Relations Act whether you have a union or not. Depending on how your policies are written, she says, you may be violating your employees’ right to engage in “protected concerted activity” as well — and this is where it gets tricky with social media.
The majority of people on social media have absolutely no idea how to use their security settings.
Studies show that people disclose far more personal information online than they would ever do in person. The majority of people on social media have absolutely 
no idea how to use their security settings, which means that much of this information is being cast out to the world at large. We’ve all heard horror stories of people posting on Facebook about their upcoming European vacations and then coming home two weeks later to find their houses burglarized. “People don’t get it that they’re telling a billion people and not just their friends if they don’t use their security settings,” Esposito says.
Even within one’s network of friends, things get messy on Facebook when work enters the mix. “I am sure a number of managers in your organizations are ‘friending’ their subordinates, which is a big, big mistake,” points out Esposito. “Because they find out information they don’t want to know — and if they take action based on that information, it’s going to be illegal discrimination or retaliation.” As Facebook friends, they may now know that an employee is gay or disabled or a myriad of other things that fall into the legally protected categories. “And once you know those things, how do you un-ring that bell?” she asks. “How can you claim you didn’t make a decision based on that?”
The Genetic Information Nondiscrimination Act (GINA), which took effect in November 2009, prohibits the use of genetic information in making employment decisions. It also restricts employers from requesting, requiring, or purchasing genetic information — but employers already have quite a lot, especially if they’re on social media. “You have information about their family members’ physical and mental issues, injuries, and illnesses,” points out Esposito. “It’s not necessarily that your mother has breast cancer; it can also be that your stepdaughter has chicken pox. It’s ridiculous, but even that is considered genetic information.”
All of this information is getting shared with people who shouldn’t know, and you’re going to be charged with using it illegally.
Esposito provides the following example: Let’s say that Ed manages several employees and has friended a number of them on Facebook, though he doesn’t actively access the site. One rainy Saturday, Ed decides to check his Facebook page and sees a number of posts by Janet describing her mother’s ongoing battle with breast cancer. Janet also posted that, although she herself does not currently have breast cancer, she’s going to be tested to see if she’s genetically predisposed to the disease. Ed now checks Facebook more regularly to monitor the situation. After about a month, Ed sees that Janet is predisposed to the disease and is considering a mastectomy to reduce her risks. Concerned that Janet will need a lengthy leave of absence, he recommends that she be included in an upcoming reduction in force.
While this example is theoretical, it’s hardly out of the realm of possibility, says Esposito. The fact that Ed kept going back to his Facebook page to monitor the situation is a violation, according to the EEOC. Ed would not have known any of this without having friended Janet — “and very often we forget whom we’ve friended, especially if we have 500 friends,” Esposito adds. “All of this information is getting shared with people who shouldn’t know. And once you know it, you’re going to be charged with using it illegally a lot of the time, even if you deny it.”
What Employees Can and Cannot Say on Social Media
Consider another scenario: Let’s say that, during meetings, Joe has been very vocal about his company’s reduction of wages and benefits during the economic downturn. In addition, he has also been vocal about supervisors’ treatment of employees in the department. To some extent, other employees have voiced their agreement with him during such meetings. Karen, an employee who wants to be promoted (“and who’s the ‘mole,’ because there’s always a mole when it comes to social media stuff,” says Esposito), informs her supervisor about Joe’s rants on Facebook, including that the supervisors are incompetent, evil crooks. When the manager asks Karen to show him her Facebook page, she hesitates, but then she reluctantly does so. Joe is then discharged for violating the company’s courtesy and disparagement policies.
There are a number of issues here, points out Esposito. “The National Labor Relations Board will have a problem with your policy requiring courtesy, respect, and professionalism in the workplace, because that deters employees from airing their concerns about the terms and conditions of their employment. They may not even realize that they can do that,” she says. (Incidentally, they also may not realize that they cannot be prohibited from discussing salaries.) In the past year or two, people have been reinstated with back pay after being fired for doing or saying things that were not courteous or respectful. “They can call their supervisors evil crooks or mentally ill, and that’s okay,” points out Esposito. Why? “Because Joe’s talking about issues that pertain to the workplace and the treatment of employees, and his comments have grown out of meetings in the workplace. Other employees have agreed with him and ‘liked’ things he’s said on his Facebook page, so they’re banding together for their collective good; this is ‘protected concerted activity.’ Now, if Joe were just ranting about ‘me-me-me,’ that’s an individual gripe and is not protected. But once it has to do with other employees, that’s a problem. He can’t be fired for ‘insubordination,’ ‘disparagement,’ or detracting from the company’s image.” In fact, if you even have the words “image” or “disparagement” in your social media policy, then it’s probably illegal, adds Esposito.
The second issue relates to the fact that a number of states now have laws prohibiting employers from forcing social media password disclosure under most circumstances. “New York’s not one of them, but probably will be shortly,” says Esposito, “and there are both federal and state stored-communications laws that basically say you cannot go where you’re not authorized to go.” But didn’t Karen agree to do it? “When all hell breaks loose and people get fired and ask, ‘What the heck did you show them for?’” explains Esposito, “the response is likely to be: ‘They made me. I thought I could be fired if I didn’t.’” She notes that a New Jersey court recently held that the Federal Stored Communications Law protects access to non-public Facebook wall posts (when the setting restricts those posts to “friends”) — although, in that particular case, the employee who brought the post to the manager’s attention was not coerced into doing so.
The Tricky Issues of Background Checks
Conducting background checks is another area in which the uninformed employer can blunder into illegal territory. The Fair Credit Reporting Act mandates that employers using a third-party consumer reporting agency to do a credit or background check on current or prospective employees must inform them of that fact and obtain their consent. While this may not be news, not all employers are aware that this also extends to letting those third-party agencies check Facebook pages.
In hiring, you need to insulate the decision-maker from seeing the things they shouldn’t be seeing.
“But I hope you’re not having the hiring manager do it,” warns Esposito. “Because then they see — oops! The person is gay, or disabled, or older, or whatever. You need to insulate the decision-maker from seeing the things they shouldn’t be seeing. Have someone who is not the hiring manager take a look and funnel the job-related things to the person making the decision.”
When Employers Can Be Held Responsible
In many states (New York included), an off-duty conduct law prevents employers from holding an employee’s off-duty conduct against him or her — unless that conduct is illegal or is business-related and you have justification. But there are categories of conduct which, if an employer knows about and does not take action, bring plenty of legal headaches. “We all know that one of the standards for liability under harassment law is that you knew or should have known that employees were harassing each other and didn’t do anything about it,” says Esposito. So what about harassment “on a medium that a billion people have access to, theoretically?” she asks. “Let’s say that an employee comes to you and is concerned that one of her coworkers has been posting what she considers to be ongoing sexually harassing comments about her on his Facebook page. In reviewing the postings that she provides, you discover that her manager is a friend of the accused harasser.” The significance of this, Esposito explains, is that her manager theoretically knows this employee is being harassed, because he’s seeing those posts as well.
Another category is negligent hiring or retention. Esposito cites an example in which a truck driver’s Facebook posts make frequent reference to binge drinking. “When that person has a really bad accident and kills someone, you’re going to be held liable, because you’ve seen the postings and should have done something to prevent it,” she says.
The Federal Trade Commission (FTC), which oversees claims of false advertising, has issued guidelines for social media. If your employees provide a good review of your products or services without saying that they are employed by you, that is false advertising — even if you didn’t ask them to do it. Similarly, if they criticize one of your competitor’s products without revealing their employment by you, that would be considered defamation. “Your social media policy must tell employees this,” says Esposito. “These things will be your responsibility, even if one of your employees is off doing it on his own.”
Exposing the Vulnerabilities of LinkedIn and Twitter
Careless use of LinkedIn and Twitter can complicate the ability to enforce confidentiality and non-compete agreements. “Often, human resources is the last to know about this,” Esposito says. “You may have sales and marketing departments who are full speed ahead on social media; they say they’re getting free advertising and interacting with customers. It’s great — until all your confidential information walks out the door.” How so? “I’m the one telling you that social media is evil, but here’s how you can use it to your advantage,” she says. “Go to your competitors’ Twitter accounts and see who is following them; that’s your target audience for new clients. Their customers are right there.” If one of your competitors is foolish enough to accept an invitation to connect with you on LinkedIn, you can see who their contacts are. (Of course, you’ve been smart enough to use the setting that hides your own contacts.)
Let’s say that, unbeknownst to you, the sales and marketing director has previously required all sales representatives to create LinkedIn accounts and connect with their customers. One of those sales reps is now about to be discharged, and happens to be linked with most of your company’s largest customers. “When that former employee updates his LinkedIn profile about where he now works, all of your customers may go to that organization despite confidentiality and non-complete agreements, because you made them set up the profiles, and you made that information not confidential anymore,” Esposito points out. If you must use LinkedIn for your business, she suggests, create professional accounts that the company gets to keep when the employees leave, and have them contractually agree to this.
Careless use of LinkedIn and Twitter can complicate the ability to enforce confidentiality and non-compete agreements.
Speaking of LinkedIn, another issue comes up regarding employee references. Many companies have a policy that only HR may provide references for employees but don’t realize people are doing it on LinkedIn every day. “Did you make it clear to them that this applies to LinkedIn as well?” asks Esposito.
The distinction between personal and work time often becomes blurred when employees are engaged in their jobs. But be careful, warns Esposito: If employees who are non-exempt from overtime are posting things beneficial to you on your organization’s Facebook page or tweeting on your behalf while not on the job, they are entitled to additional pay under wage and hour laws.
The very vulnerability of social media also enables employers to use it to their advantage, Esposito points out. Say you’re in the middle of a contentious disability discrimination case in which a former employee claims you failed to accommodate his need for additional medical leave. A coworker brings you screenshots of what she saw on Facebook: recent pictures of the former employee strenuously working on an addition to his home, which suggests that he is not really disabled. “Every case that I have,” Esposito says, “during disclosure, I always ask for social media posts, because there’s gold in them there hills” — like the recent sexual harassment case in which the alleged victim so upset by a manager’s comment turned out to be a porn star.
In concluding, Esposito makes two points: The more specific detail you provide about things that are defensible, the better your policies generally are. A disclaimer on your policy that it is “not intended to infringe on employees’ rights to engage in protected concerted activity” doesn’t mean anything unless your employees understand what that is. And it’s important to work with a labor lawyer to make sure that cutting-edge issues are addressed in your social media policy. “It’s not sufficient to go to an employment, intellectual property, or technology lawyer,” Esposito says. “New guidance is issued almost every month, and these changes are all in the area of labor law, even if you don’t have a union.”
Jane Rubinsky is Editor of GetFive Newsletter.
