Remember when Justine Sacco, a former PR executive, hopped on a flight to Africa right after tweeting “Going to Africa. Hope I don’t get AIDS. Just Kidding. I’m White”? It became known as the “tweet heard round the world” and is any employer’s worst nightmare. After landing in Africa and turning her phone back on, the damage had been done. What was surely intended as a joke caused a social media firestorm and the PR firm to part ways from Sacco, who had not been tweeting in her employment capacity, but whose personal off-color comment (no pun intended) failed to align with the PR company’s values. Sadly, stories like Sacco’s are not uncommon. It is important for employers to implement social media policies to limit their liability and protect the company’s public image, while also protecting the privacy rights of their employees.
Because social media is a relatively new phenomenon, employers have been wading into unchartered territories when creating and implementing social media policies. Some employers choose broad, simple policies. Zappos, for example, has a one-line policy: “Be real and use your best judgment.” A straightforward policy like this builds trust between the employees and employer and makes employees feel empowered to exercise their own judgment. A simple policy avoids the pitfalls of a lengthy one, which will undoubtedly miss an obscure social media situation. However, this shorter policy may not be enough to save the company from a public relations disaster if a rogue employee decides to post something negative, harassing or discriminatory while somehow tying the employer to the post. And, a short policy may not protect the employer from liability if a decision-making employee posts something discriminatory about a co-worker or subordinate.
Unlike Zappos, the EPA has a six-page-long social media policy. A detailed policy will likely provide the employer with more protection from liability and may also curb negative headlines in the event of a public relations disaster. Longer policies allow for the employer to give clear expectations or a list of do’s and don’ts to guide the employee. The burden is on the employer to make technology-related policies and their applicability clear, both in and outside the office. The burden then shifts to the employee to understand and acknowledge the company’s policies and procedures. Once the employee acknowledges the policy, the employee has notice that his or her social media use is subject to the employer’s policies and procedures.
That being said, employers should also consider the National Labor Relations Board and their stance on social media policies. The NLRB protects rights of employees to act together to address conditions at work, with or without a union. In 2011 and 2012, the NLRB released three memos discussing when a social media policy may violate federal law. When an employee is discussing terms and conditions of employment on social media with fellow employees who are “friends,” this can be considered “protected concerted activity.” The NLRB cautions that a policy should not be so sweeping that it prohibits the kind of activity protected by federal law, such as the discussion of wages or working conditions among employees. However, it further acknowledges that an employee’s social media comments are generally not protected if they are mere gripes unrelated to protected employee group activity.
Knox v. Union Twp. Bd. of Educ., 2015 L.R.R.M. (BNA) 177061 (D.N.J. Feb. 23, 2015) is demonstrative of what can happen when an employee feels they have been discharged for engaging in protective social media use. In Knox, a public school teacher was suspended after making comments on Facebook expressing her religious-based disapproval of a school billboard that contained homosexual content, and of homosexuality in general. The school board brought tenure charges against her before the commissioner of education, aimed at obtaining her dismissal. Knox ultimately entered into a settlement agreement with the board, under which she voluntarily resigned, but the settlement agreement did not include any more general release of federal or state law claims. Knox then filed suit, claiming that the school board and its employees discriminated against her on the basis of her race and religion, violated her rights under the First, Fifth, and 14th amendments to the United States Constitution, and violated her rights under the Free Exercise and Enjoyment of Religion clauses of the New Jersey Constitution. Her claims survived the school’s motion to dismiss, and she is moving forward with her suit against the school. Had the school crafted and implemented a social media policy, the suit would likely have been avoided.
Social media has created unprecedented issues for employers. In creating a social media policy, there are competing interests that the employer must consider and balance. Employees have a desire to protect posts and keep social media accounts private and shielded from unwanted eyes, and the employer has the concern and goal to protect itself from liability and to maintain a positive public image. Having a social media policy in place is a prudent move for all employers; however, determining how detailed the policy is should be left to the employer after weighing various factors including the company’s culture and potential exposure.•
• Stephanie Cassman and Nabeela Virjee are litigation attorneys with Lewis Wagner LLP. Both are members of the firm’s employment law group, which is chaired by Cassman. They can be reached via email at firstname.lastname@example.org and email@example.com.