Tag Archives: LinkedIn

Employers Could be Held Liable for Supervisors’ Comments and Use of Facebook

Contributed by Michael Wong

One of the biggest issues for employers is how much the internet and social media can be used to find information posted by or about employees.  However, how many employers consider their own social media footprint and who is contributing to it?  While an employer may be cognizant of what it posts on the internet, it should also be concerned about what managers and supervisors are posting on the internet and social media (Facebook, LinkedIn, MySpace, Google+, blogs, etc.).

As what has generally come to be recognized as the “Cat’s Paw” theory, the actions of a supervisor, even one who is not a decision maker, could be conveyed upon an employer to support the imposition of liability.  Staub v. Proctor Hospital, 131 S.Ct. at 1193.  As explained in Staub, because a supervisor is an agent of the employer, when he or she causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in the supervisor doing so, it is a motivating factor in the employer’s action. 131 S.Ct. at 1193.

Under the Cat’s Paw theory it is possible that an employer could be subjected to liability based on its owners’, directors’, managers’ and supervisors’ personal use of social media, including Facebook.  This became even more evident when the District Court for the Middle District of Tennessee held that posts on a company blog, posts on a manager’s personal Facebook page (even when removed) and a manager’s verbal comments, were sufficient evidence to create a genuine dispute of facts concerning one employee’s retaliation claim and another employee’s constructive discharge retaliation claim in a FLSA class case. Stewart v. CUS Nashville, LLC, 3:11-CV-0342, 2013 WL 456482 (M.D. Tenn. Feb. 6, 2013). 

In Stewart, the court found that a blog entry on the company’s website by its founder and president that “referenced a lawsuit initiated by someone who had been previously terminated for theft and contained the following statement directed to that individual: ‘Fu** that b*tch’” was sufficient evidence to allow a jury to find retaliation in violation of the FLSA. The court went on to find that the company’s Director of Operation’s post on Facebook, while intoxicated, stating “Dear God, please don’t let me kill the girl that is suing me . . . that is all . . .” and similar verbal comments while the employee was present, were sufficient evidence to allow a jury to find the employee was constructively discharged in retaliation for joining the FLSA lawsuit. While the court did not find the evidence was enough to grant either party summary judgment, the use of social media lead to the employer being faced with the uncertainty of liability and costs of a trial.

Bottom line: Employers must be aware that they could be held liable not only for what they post on the internet, but what their directors, managers and supervisors post on the internet.

The Internet Police Have Arrived

Contributed by Terry Fox

While Al Gore may, or may not, have invented the Internet, there has not been any central enforcement body to regulate manners, civility, or professionalism in individual Internet discourse . . . until now. It appears that “regulation” is a misnomer because, in actuality, it is more like de-evolution.  Having read the National Labor Relations Board’s Acting Associate General Counsel’s Report Concerning Social Media Cases released May 30, 2012, I am picturing the NLRB management sitting around wearing red plastic flower pots as hats like the early punk band DEVO as they concoct ways to “whip it into shape” on the world-wide web by gutting employers’ social media policies. These rules and pronouncements govern employee’s postings on social media like Facebook, MySpace, and Twitter.

A rule advising employees not to “release confidential guest, team member or company information” is illegal under Section 7 of the National Labor Relations Act, says the NLRB, because employees would construe this rule to prohibit them from discussing the wages and conditions of employment for themselves and others.  This rule is taken from Target Corporation’s social media policy.  The Acting General Counsel report also took issue with a section of Target’s policy addressing confidential information.  Its rule that employees not discuss confidential information of other employees in break rooms or other open areas, in public or at home was deemed unlawful because it would be [not had been] construed by employees to preclude discussion of terms and conditions of employment.

General Motors’ social media policy fared no better.  GM’s policy section requiring posts to be “completely accurate and not misleading” was found overbroad because only maliciously false information lies outside Section 7 of the NLRA.  The admonition for employees unsure of a post’s propriety to check with the company’s corporate communication or legal departments prior to posting is also illegal in the NLRB’s view. 

Most surprising is the trashing of GM’s rules of civility – “treat everyone with respect” – by the NLRB.  “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.” What’s the problem with that rule?  “[T]his provision proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.”

Privacy gets no respect from the NLRB.  In reviewing McKeeson Corporation’s social media policy, the Board took issue with the provision titled “Respect Privacy.”  McKeeson’s business is to support patient billings for the health care industry.  The “offensive” clause stated “[i]f during the course of your work you create, receive or become aware of personal information about [Employer’s] employees, contingent workers, customers, customer’s patients, providers, business partners or third parties, don’t disclose that information in any way via social media or other online activities.”  Unlawful, said the NLRB, because it would preclude employees from discussing wages and working conditions. 

As shocking as it is that the federal government is enticing employees to talk smack about each other online, the safe haven for employers is uncharted.  Most current social media policies contain a so-called “savings clause.”  Those provisions generally state that the policy is not intended or to be applied to preclude lawful activities under the law, or specifically Section 7 of the NLRA.  A “savings” clause is of no value because it will not save an otherwise unlawful policy because employees would not understand from a disclaimer that protected activities are in fact permitted. 

The Acting General Counsel report trashes the social media policies of other for-profit and nonprofit organizations.  The report does give a pass to Walmart’s revised policies (as of 5/4/12), and provides them as an attachment.  Employers are commended to read the report and strongly encouraged to have trained legal counsel review social media policies.  There appears to be a fair degree of nuance to this, as shown by the report when read in its entirety. What the NLRB appears to be striving for are express carve-outs encouraging employees to discuss wage and working condition issues.  If that is required, it is not clear if having a social media policy is beneficial.  Walmart’s policies, however, find a balance without providing overt encouragement through examples. 

This is an area of rapidly changing laws, rules, and expectations.  The May 30th  report is the third report in less than a year.  Expect more mayhem. . .

Friend Me??

Contributed by Julie Proscia

Back in the pre-digital day, employers checked up on potential employees by picking up the telephone (gasp-no not even a cell phone) and speaking with another real live individual. The controversy with this method revolved around what “not eligible for reemployment” really meant (by the way it means do NOT hire the person). Now prospective employers rarely call references but instead run digital background checks, surf the Internet and monitor LinkedIn and Facebook sites to ascertain who their potential new hire really is. There is an ever increasing number of employers that require applicants and employees to “friend” them on Facebook or turn over social media passwords, and this is causing a storm of controversy and sparking legislation in an attempt to safeguard privacy rights.

Illinois is one of a number of states that is struggling to respond to this dichotomy – the right to know versus too much knowledge. Currently pending, and on a Third Reading in the Illinois House, is an amendment to the Right to Privacy in the Workplace Act. The amendment would make it unlawful for any employer to ask any prospective employee to provide any username, password or other related account information in order to gain access to a social networking site where that prospective employee maintains an account or profile. The amendment would not reduce an employer’s right to promulgate and enforce lawful workplace policies regarding electronic communications and social media. If passed it may make the question, “friend me” just as illegal as “what religion are you?”

While the internet is a wonderful tool for knowledge, particularly on such philosophical issues as “is the Mango really the most popular fruit?” it is also a door into the secret life of not only your employees but also your applicants. It gives prospective employers the opportunity to peek behind the curtain and see what or who the individual really is.  While individuals’ resumes may state that they are hardworking and dedicated, their Facebook pages could reveal that last Saturday they had a lampshade on their head and a beer in their hand. The separation between the public and private is a question of boundaries – that is not easy. On one hand there is a legitimate argument that if a person puts information out for the world to see, it is fair game – on the other, there is the equally legitimate idea that whatever happens after 5:00 p.m. is personal time. This is the delicate balance that courts are just beginning to battle and that Illinois is examining.

Whether or not the legislation passes will only be the beginning of this debate. Stay tuned for more details. In the mean time, friend me, I am the attorney with the lamp shade on the left…

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