Social Media and Employee Rights

Introduction 

With the advent and continued growth of social media, the online space has become another avenue through which company image can be maintained, improved, or tainted. While businesses can be in control of the way they manage their own social media presence and reputation, the access that employees have to social media presents another, less easily regulated route for influencing brand reputation. Many employers have found themselves in uncomfortable situations where their employees have been less than flattering their business on social media. An unfortunate result in many cases has been termination. However, such situations create questions about employee rights and how they apply to the online space. In a few cases, courts have found the decision to terminate employment invalid. In other cases, the decision has been upheld. There is a growing need among the American public and American law practitioners for a clear understanding to be developed on the issue of employee social media rights. In the paper below, the history, legal authority, and arguments on employees and social media will be discussed. 

Current stop-gap measures being employed as this situation develops company social media policies. Companies are putting forth guidelines for employee behavior on social channels to protect themselves from security issues and legal issues. These social media policies are designed to protect the company rather than the employee. They may also include overly restrictive guidelines on references to the company that negatively affect an employee's right to self-expression. However, employers are left with no choice but to implement these measures, as there is little understanding of how the law on this issue currently stands and where it will lead in the future. Thus, it is important to provide resources such as this report to summarize and advise important groups with a stake in this matter. 

Employee Social Media Rights Law and American Businesses: A Short History 

Social media, employer, and employee interactions are a developing area both in American history and American law. As a result, the area of employee rights with regard to social media is a still-developing one. However, even as more research and concrete guidelines are being developed on this issue, the National Labour Relations Board (NLRB) has already carried out reports and enforced actions on this issue used as current legal policy on employee social media rights. 

In response to various requests for guidance from several stakeholders such as employers, employees, and legal advisors, the NLRB put out three memos between the years of 2011 and 2012 dealing specifically with the issue of social media in the workplace (NLRB, 2020b). The Acting General Counsel Lafe Solomon put these memos out after the NLRB placed considerable time and effort into researching and investigating dozens of social media and employee rights cases. These official statements summarize the early history of this issue with regard to American businesses. 

The first report was issued in 2011, on August 18 th and provided details on 14 cases that the Labor Relations Board had investigated. Seven of these cases had taken place entirely on Facebook, and the General Counsel had found that these employees' activities were protected (NLRB, 2020b). The specific term used was "protected concerted activity," which refers to the fact that these employees discussed the conditions and terms of employment with their fellow employees. As a result, the employer, in this case, was deemed to have no right to act on their activities. 2 other cases from this review took place on two platforms at once – Facebook and Twitter. In these cases, the court did not find the employees' activities to be protected (NLRB, 2020b). In fact, one of the cases was determined to consist of unlawful coercive conduct on the part of a union. Wherein union officials had taped interviews with employees at non-union job sites with the intent to cause harm (NLRB, 2020b). The final 5 cases dealt with the stop-gap measures being put in place today by employers – social media policies (NLRB, 2020b). As discussed above, social media policies are guidelines for social media activities that are created by employers for their employees to follow. They are used to manage the type of employee-centered content that employees can post and prevent legal issues from occurring later on. In these 5 cases, the court had found fault with employers' social media policies, stating that they were too broad. In the last case, however, an employer’s social media policy was found to be lawful. 

From this 2011 government memo, it is simple to infer a snapshot of the issue’s history so far. Social media had come to employers' attention as a potential liability, and some had used online content to attempt the termination of workers. On the other hand, workers were also becoming aware that social media posts could be used against them in the workplace, and had begun seeking legal counsel in cases where employers cited social media posts. Furthermore, companies had begun to implement social media policies, but their formulation was still developing, and many were found to have unlawful components. 

By 2012, key issues within this topic for American business had changed again. This time, more than half of the cases reviewed by the NLRB were on employer social media policies (NLRB, 2020b). Once again, the majority of the cases on employer policy were found to be unlawfully broad (NLRB, 2020b). The remainder needed revision to become lawful. As a result of this 2012 report, guidelines on social media and employee rights began to take on a more concrete form for American businesses. These early guidelines were: 

Sweeping social media policies that prohibit activity that is protected by federal labor laws are unlawful. It includes the prohibition of topics such as working conditions and wages among employees. 

Employee comments online, which are complaints but do not include or reference group activity among employees, are generally unprotected and can result in a ruling of lawful termination (NLRB, 2020b). 

From this report, it was clear that many American employers had taken to implementing social media policies in the workplace. As a result, the existing law and case history on the issue shifted from individual cases to analyzing the lawful or unlawful properties in social media policies. The final report marking the development of early history on the issue of employee social media rights was made in 2012 on May 30 th . The report was shorter and exclusively centered on employer policies for social media. Out of the seven reviewed cases, six were found by the Labour Board to have unlawful provisions. In the last case, the entire policy was found to be unlawful for prohibiting the discussion of wages and conditions. 

The NLRB findings on reviewing these cases form the main history on the topic of social media and employee rights for American businesses. The case law that has followed in the intervening years has added to the rough outline created in these earlier years. This legislative history is often referred to for cases today. 

Legislative History and Case Law 

After the establishment of employee social media rights guidelines by the NLRB between 2011 and 2012, a few important cases took place that served as examples of case law in American history henceforth. A selection of these cases will be discussed in a timeline. One such case is the Pier Sixty LLC vs. Hernan Perez and Evelyn Gonzalez case, which was decided in 2013. This case involved the use of social media posts, disparaging an employer (Fernback, 2017). The employer got information that their employee had posted such content from other workers, and used it to fire the employee. The worker in question, Hernan Perez, had used his social media to complain of several instances where the employer had treated him disrespectfully and laced the posts with strong language and profanity ( Quinto-Pozos, 2018) . When this case was brought forward, it was found that the employer was in the wrong to use these social media posts as a reason to fire the worker (Fernbach, 2017). The employer had violated their workers' rights to discuss the working conditions of their workplace with other workers. As Perez's statements resonated with and interacted with other workers complaints, they were judged to be lawful and beyond reproach through termination. Furthermore, the alleged profanity claimed by the employer as a reason for termination was also not found, and the court revealed that rather than arbitrary insults, Perez' Facebook posts were a series of reports on mistreatment at work and a means of protest against unequal treatment ( Quinto-Pozos, 2018) . 

The case is historically important because it establishes that employees are allowed to express dissatisfaction with their working environment on social media, without disciplinary consequences. The situation may be frustrating to employers, but they must understand that this particular issue pertains to federal law. It is thus an important case to highlight. 

Another important case to highlight occurred in the same period, between Nieman and Grange Mutual Insurance Company. In this case, Nieman filed a complaint against the defendant, stating that he had used her social media page LinkedIn to obtain information that she had sued her former boss. This information was then used to deny her a position as retribution for taking action against a former employer. This case is interesting because it was dismissed, although the court did not deny the plaintiff's theory's validity. Simply put, the social media laws – as applied to this case – do not prohibit social media use to obtain information on a job candidate (Delarosa, 2014). Thus, employers are within their rights to use digital platforms to vet and monitor applicants without violating any laws. It is important information for both job-seekers and employers. 

Another important case is from 2016, titled Hannah v. Northeastern State University. This case is important legislative history as it handles a common occurrence – social media use for workers to harass one another. The defendant was a professor at the university called Dr. Cowlishaw. He posted several racist references against his colleagues on Facebook. This behavior created a hostile work environment, which the plaintiff argued the university was responsible for advocating against. The verdict following this case was in favor of the plaintiff, as evidence was shown that Cowlishaw’s comments could be psychologically negative. This case highlighted the need or employers to control what information employees post in a social media space concerning the workplace. 

Legal Authority 

The main law regarding this issue is the National Labour Relations Act. This act protects the employee's rights to act as a group in an effort to address any unfavorable conditions at work (NLRB, 2020a). It applies both to workers within a union and workers outside of it. Furthermore, the protection extends to social media, as long as the conversations are work-related. The National Labour Relations Board (NLRB) is a federal agency charged with enforcing this act. It receives charges based on the issue of employer social media policies and complaints of unlawful conduct regarding social media posts. It provides guidance and reviews of such complaints and rulings to establish whether or not they are lawful. 

Arguments 

The main argument on the side of employees is that they are within their rights to discuss their workplace conditions and wages among themselves on social media platforms. The law protects Their actions on this issue, and they should not face the consequences at work based on exercising this right. However, employers feel that there should be limits to such discussions. Social media interactions for workers in the office space can be security risks, an avenue for harassment between workers, or a source of negative exposure for the company. 

In an effort to compromise, most employers have a social media policy. However, in many cases, these policies prove unlawful for placing broad restrictions (NLRB, 2020b). On the other hand, implementing one is the necessary first step for taking control of the situation, as amendments and revisions can follow this preliminary action. 

Recommendations and Future 

In rulings on the issue of social media rights for employees, the NRLB and the case law provide clear guidelines. The first is that employees are permitted to use social media in discussions on wages and working conditions and that these are protected activities beyond reproach by employers. The second is that comments that are merely complaints and do not feature any valid discussions of these two subjects are not protected. The third is that employers are within their rights to use social media to vet job candidates, even using social media resources. 

I recommend keeping these three guidelines in mind to analyze cases in this area lawfully and in keeping with existing statutes and case law. These three guidelines provide a simple summary of the situation. Cases falling outside of these three guidelines will generally consist of issues with company social media policy. In such cases, establishing whether or not the policy or its tenets are lawful should focus on the review. 

The future of this issue will revolve around the social media policies implemented by employers. These social media policies have become an essential part of managing employees. Apart from disparaging employers and harassing co-workers, a new trend that has emerged in this area is termination based on posts about social justice and political incorrectness (Doyle, 2020). The company's ability to take disciplinary action based on such posts will be the future of case law on this topic. 

References 

Delarosa, J. (2014). From due diligence to discrimination: Employer use of social media vetting in the hiring process and potential liabilities.  Loy. LA Ent. L. Rev. ,  35 , 249. 

Doyle, A. (2020). You Can Get Fired for What You Post Online. The Balance Careers . Retrieved from https://www.thebalancecareers.com/posting-information-online-can-get-you-fired-2062154 

Fernbach, K. (2017). Panel: NLRB 101: A Prima on National Labor Relations Board Procedures.  Journal of Collective Bargaining in the Academy , (12), 26. 

National Labor Relations Board. (2020a). Social Media. Retrieved from https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/social-media-0 

National Labor Relations Board. (2020b). The NRLB and Social Media. Retrieved from https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/the-nlrb-and-social-media 

Quinto-Pozos, M. (2018). The Tension Between the NLRA, the EEOC, and Other Federal and State Employment Laws: The Union Perspective.  ABA Journal of Labor & Employment Law ,  33 (3), 277-290.