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Ignoring this body of laws—some of them unique to our Island state—can cost you an important deal or even jail time. But keeping up with changing laws and emerging legal trends can be a challenge when running a business. For this reason, Hawaii Business magazine inaugurated this special report featuring articles written in non-legalese on important issues by some of our state’s top business lawyers with business people in mind. In the future, it will deal with a myriad of other legal issues that businesses continually face.
New and Emerging Headaches – An Employer’s Quick Guide To Navigating Social Media Issues in the Workplace
By Megumi Sakae
There is no question that social media is here to stay. As a dizzying number of social media sites pop up every day, social networking accounts for more and more of the billions of hours we spend online. According to the undisputed king of social media, Facebook, it has one billion active users as of October 2012. Even discounting that number with the Facebook pages of pets and babies, that’s a lot of social networking. It’s not surprising that all of this social networking has crept its way into the workplace. And while it’s easy for employers to manage its employees’ use of social media at work for personal reasons, for example, by issuing a policy prohibiting personal Facebooking while on the clock, the issues seem to become more complicated when the line between work and personal become blurred.
Below are some common questions our firm receives from clients as employers attempt to navigate this new area of labor and employment law.
Question 1: My company is very image conscious. I would like to access employees’ social media sites to ensure that their posts and other information on their personal social media pages are consistent with the company’s reputation. Can I require job applicants and employees to provide their personal identifier and password to their social media pages for my review?
As of the writing of this article, in Hawaii, there is no statutory law that prohibits employers from requesting or requiring applicants and employees to provide passwords to their personal social media sites. However, there is a strong movement toward protecting employee privacy by prohibiting employers from requiring or even requesting passwords or related account information. Maryland, Illinois and California have already passed such laws. Maryland’s law became effective as of October 1, 2012 and Illinois and California’s become effective January 1, 2013. Bills with similar prohibitions have been introduced in several other states (but not Hawaii) as well as the United States Congress.
While accessing an employee’s social media account might not violate any statutory law in Hawaii, doing so comes with a number of perils, including potential invasion of privacy claims, the possibility of creating duties to investigate that did not previously exist, and damage to employee morale. In addition, as discussed in Question 2 below, accessing an applicant’s/employee’s social media account might also open up the company to a discrimination claim.
Question 2: I am really impressed with a prospective employee and am planning on extending him an employment offer. Is it okay if I Google him out of curiosity?
“Googling” a prospective employee may seem harmless, after all, you intend to hire him, but what happens if you Google him and come across his public Facebook page that shows his religious affiliation along with some disturbing posts that lead you to change your mind about offering him the job? What seemed like an innocuous search has now exposed the company to potential liability. Did you reject him because of his religious affiliation that you discovered while snooping around the internet about him? Can you prove that you did not? If the candidate pursues the matter legally, how much would it cost to prove that you didn’t? Was the information you read and relied on in making your employment decision posted by the candidate or was it third-party information? Have you now violated the Fair Credit Reporting Act (“FCRA”) because you conducted the search of third-party information about the applicant without his written consent?
If your curiosity relates to legitimate business concerns, e.g., the position is for a financial advisor and you want to know if the candidate has gone through a bankruptcy, the safest course would be to obtain the candidate’s credit report in accordance with the requirements under the FCRA and Hawaii’s mini-FCRA. On the other hand, if you’re curious about which online board games he plays, it may be safer to find out the answer during his welcome lunch.
Question 3: I recently found out that two employees have been complaining about their wages on Facebook after another showed me a copy of the Facebook page. I noticed several employees posted comments and am concerned that discussions about pay will affect employee morale. We are not unionized and I believe the amount the company pays each employee is confidential and should be dealt with individually and not posted online for everyone to see. Can I direct them to stop airing this kind of confidential information in a public forum?
The National Labor Relations Board (“NLRB”), which has jurisdiction over unionized and nonunionized private sector employers (depending on their level of activity in interstate commerce), has taken the position that employer actions that discourage employees from engaging in “protected concerted activities,” i.e., objecting to their working conditions and seeking support of others to improve them, violate the National Labor Relations Act. This includes statements by employees posted on social media sites to their co-workers, supervisors, or even third parties. Thus, employers should think twice before prohibiting conduct or taking disciplinary action for conduct, which at first glance seems inappropriate; it may be protected conduct under the law.
Question 3a: What if I provide a written social media policy so my employees know what I expect of them?
It’s possible that your policy will also be deemed unlawful. On September 7, 2012, the NLRB found unlawful Costco’s written policy which prohibited “statements posted electronically that damage the Company . . . or damage any person’s reputation.” As a result, the NLRB ordered Costco to cease and desist from maintaining policies that (1) prohibited unauthorized posting, distribution or alteration of any material on company property, (2) could be reasonably interpreted as prohibiting discussions about employee wages and conditions of employment with other employees or third parties, (3) could be reasonably interpreted as prohibiting employees from sharing or storing wage information or information relating to other terms and conditions of employment of employees without permission of management, (4) prohibited employees from electronically posting statements from damaging a person’s reputation and (5) prohibiting the removal of confidential material (i.e., wages or other terms and conditions of employment of its employees) from company premises. The NLRB deemed Costco’s policy too broad (and therefore unlawful) because it could be reasonably assumed by an employee to apply to communications about protected concerted activities, e.g., employees complaining about their pay on Facebook.
Three weeks later, in a September 28, 2012 decision, the NLRB held that an employer (a high-end car dealership) who maintained a “courtesy” policy, which required employees to be “courteous, polite and friendly” to “customers, vendors and suppliers, as well as to their fellow employees,” and further stated that “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership,” was similarly unlawful.
You may think that both of these policies could be reasonably interpreted as simply protecting the employer’s legitimate business interests and that may be true; however, the NLRB would disagree.
Question 3b: Is there anything I can do as an employer to protect my legitimate business interests?
Yes. Given the potential unlawfulness of policies that appear to be “too broad,” employers can protect themselves by maintaining policies that prohibit the specific conduct tied to their legitimate business interests. Examples of policies that would be considered lawful are those that prohibit employees from posting company trade secrets, internal business-related confidential communications, or harassing comments. In creating policies, the narrower the policy the more likely it is to pass NLRB muster.
Question 4: Our former Director of Sales started and ran the company’s social media site. She left on bad terms and locked us out of our site. She claimed the site belong to her since she managed it, even though the time she spent doing this was on the company’s dime. The company finally managed to come to an agreement her, but how can I prevent this from happening again?
The company can take several steps to protect itself to prevent such incidents in the future. Company-owned social media sites should be treated like any other property of the company, e.g., company e-mail accounts. Just as companies notify its employees that their company e-mail account belong to the company along with the e-mail account’s login and password information, companies should also inform whoever manages the company’s social media site that the site and the password to the site (and related information) belongs to the company. Most rational employees would not expect to be able to take their company e-mail account with them when they leave the company, and it should be clear that the same is true for the company’s Linkedin site.
In many ways the issues raised by social media are the same ones that employers have always been dealing with except in a different forum. Just as an employer can look to the way it protects other company property to guide it on how to handle its social media site, that the NLRB prohibits policies that would discourage employees from engaging in protected concerted activities on Facebook may not be surprising if you consider that the NLRB never allowed similarly broad policies before Facebook came along, when those same discussions occurred in the break room. Thus, finding the answer to your social media woes may just be a matter of removing the hoodie from the equation.
This article is intended to address issues of general interest and is not intended to constitute legal advice or to substitute for the advice of legal counsel. This article was written in October 2012. Please consult with your legal representative for the most recent developments on this topic.
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