When Boss Controls Your Facebook
Written by Catherine Lackner on May 30, 2013
By Catherine Lackner
Whether, and how, employers can control what their employees post on social media sites like Facebook and Twitter depends on many factors, experts say. It’s a delicate balance between employees’ right to self-expression and business owners’ rights to protect their reputations and images.
Ethan Wall, an associate with Richman Greer, PA, has just written a book tentatively titled "Ready, Aim, Fire Over Facebook." He also writes a blog called Social Media Law & Order.
"Social media activity in the workplace is a big issue," he said. A 2012 study demonstrated that 75% of employees access one or more social media platforms from work each day, either on their computers or their mobile devices, he added.
What they say on social media might or might not be protected by federal law, Mr. Wall said. Though Florida is an "at-will" state, in which anyone can have their employment terminated for any reason — except discrimination — the National Labor Relations Board (NLRB) governs what most private-sector companies can do without risking litigation, he said.
Over the past 2½ years, the board has released three reports on social media, he said. "This new book summarizes all of the cases and policies that discuss social media, and the lessons we’ve learned.
"It’s important, even in an at-will state like this, to realize that federal law protects employees," Mr. Wall said. "For instance, some statements they make on social media would be protected."
These would include workers’ communication about the terms and conditions of their employment, including wages and supervision, especially if they are communicating with fellow employees, he explained.
"Certain statements that lose protection include those that are libelous, or so harsh or derogatory that they are defamatory," he said. False statements, surprisingly, can be protected if they are not maliciously false — deliberate lies meant to cause harm. The NLRB rarely finds mean-spirited or insulting comments about the employer to be valid grounds for termination, he said.
For example, the management of a sports bar was attacked, using profanity, on social media because not enough state income taxes had been withheld, leaving employees to pay. Two employees were fired after management discovered the online trashing.
"They both went to their local NLRB and filed a complaint," Mr. Wall said, "and the NLRB found they were fired improperly. The statements were opprobrious, but not maliciously false — the employer had screwed up the paperwork."
Best practices dictate a social media strategy, he said. "The takeaway is if an employer does not have a social media policy, it should, or it will be very difficult for it to police its employees’ social-media activities," he concluded. "Mobile devices have facilitated it; employees are going to find a way to get their Facebook fix or tweet. Employers need to think twice or thrice before they fire someone over a Facebook post, because they could be staring down the barrel of a lawsuit."
Mark Neuberger, of counsel for Foley & Lardner, represents employers in labor disputes and frequently is asked about social media. The area is rife with misconceptions, he said.
In one respect, government employees — who, like airline, railroad and union employees, are not covered by the NLRB — have a constitutional right to free speech; not so in the private sector.
"That surprises a lot of people," Mr. Neuberger said. "Government cannot take action to squelch free speech under the Constitution. But that doesn’t apply to private businesses." The NLRB, he explained, also doesn’t protect management or contracted workers, who are not considered employees in the same sense as wage-earning workers.
He agreed that private-sector businesses need a set of social media rules, but cautioned that "the NLRB has attacked employers who create overly broad policies. You can’t, for instance, tell your employees that they can’t say anything bad about the business on social media. You have to break it down."
Nor can they reveal confidential business information.
"If I work for Coke, I can’t put the formula on social media," he explained. "The company has an interest in protecting that."
When considering whether something posted on Facebook or Twitter will have a negative effect on a business, it’s important to evaluate whether the relationship between the poster and the employer is obvious to a wide audience, he added. If not, there may be little or no potential damage to the employer if something objectionable appears in an employee’s post.
"The other thing I tell employers is that, often times, they overreact," Neuberger said. "Coming down hard makes it seem worse than it is. If your employee posts something silly or embarrassing on their Facebook page, it’s not going to affect your consumers’ purchasing actions."
Because no written policy can cover every situation, Mr. Neuberger suggests employers have ongoing discussions with their staffs. "Each scenario is different, so it’s more a matter of training and communicating with them. Say, "look, social media is very powerful. Be smart; use these things wisely.’
"Consider limiting employees’ use of social media at work, on the company’s equipment," he suggested. "You can control what goes on; you can block employees from using Facebook and Twitter. You also arrange your computer system so that not everybody has access to everything," thus limiting the possibility that sensitive information will find its way to the Internet.
"I encourage clients to really understand social media," Mr. Neuberger said. "Lots of employers in this day and age don’t, and I tell them, "You’re making a big mistake — it’s affecting your business every day. If you don’t address it, you’re at a management deficit.’ "
For anyone who doubts the reach of Facebook and Twitter, there is plenty of anecdotal evidence.
"It’s amazing what people put on Facebook and Twitter, without thinking," said Richard Wolfe of Wolfe Law Miami. "Mike Wallace is hot topic," he said, referring to the Miami Dolphins player who made insensitive remarks on Twitter about Jason Collins, the NBA center who had just come out as being gay. Mr. Wallace deleted the tweet and apologized, but not before his tweet went viral.
The team rushed to disavow it, saying, "Mike’s comments do not reflect the views of the Miami Dolphins. We believe in a culture of inclusiveness and respect, and any statements to the contrary are in no way acceptable to our organization. We will address the entire team about our policy of inclusion."
It’s not just controversial statements that get aired on social media, Mr. Wolfe said. "How many people post a photo of themselves saying "Here I am at Liv’ and in the photo are six bottles of vodka? Then they get into an accident and the evidence is all there."
Mr. Wolfe, who has a large entertainment practice, told the story of a client who produces downloadable adult films along the lines of "Girls Gone Wild," but always with the subjects’ consent.
"They are very careful; they hire an outside producer and as the actors arrive at the shoot, there’s someone who makes a photocopy of each person’s driver’s license, and each person must sign a release."
Nevertheless, the client was sued by a girl who said she had been underage at the time of the filming and had not given her consent. "She said she had no idea she was in a porn shoot and that she never signed a release," Mr. Wolfe said.
By gaining access to her Facebook page, "We found out that that night had been her 21st birthday. She had posted "I don’t really remember, but now that I’m 21, watch out, Mizner! No more fake IDs.’ "
Another friend posted a message jokingly asking for her identification back, and that friend’s name matched the driver’s license and release Mr. Wolfe’s client had on file. The firm contacted the friend to confirm that her identification had been in the other girl’s possession that night, "and we were able to prove what really happened."
People tend to think that information on Facebook is private or can only be viewed by a select audience, but the reality is that most people accept "friend" requests — allowing that person access to a Facebook page — from anyone who asks, Mr. Wolfe said.
"If I can’t make a friend request — and technically I can’t have contact with someone who’s represented — the client usually can, and then can show me what’s on their Facebook page. What amazing stuff we’ve gotten," he recalled.
A famous musician client was sued by a woman who said she had broken her leg at one of his concerts, Mr. Wolfe said. "She claimed the security was not good, and that’s why she broke her leg. But on her Facebook page not too long afterwards, we found a photo of her in short pants, with no cast. There were photos of her playing tennis, posts saying she was going mountain climbing. What’s on Facebook is a treasure trove." To read the entire issue of Miami Today online, subscribe to e-MIAMI TODAY, an exact digital replica of the printed edition.