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EEOC, NLRB officials talk social media

November 24th, 2014  |  Lisa Milam

By Lisa Milam-Perez, J.D.

When it comes to social media in the workplace—a topic of ever-growing interest to labor and employment law practitioners—what’s old is new again. That was the recurring theme at a recent social media seminar featuring key EEOC and NLRB officials. Social media isn’t breaking any new legal ground; it simply calls for an application of long-standing legal principles to the novel setting of cyberspace.

“As is frequently the case in the social media context, we address a fact pattern that essentially has very apt analogies in pre-existing law and apply it in a technologically different context,” said Richard F. Griffin, Jr., NLRB General Counsel.

“It’s not that the law is any different than what you or your clients have been applying,” EEOC Commissioner Chai R. Feldblum added. “It’s just in a different, technological context.”

The seminar, hosted by the Philadelphia office of law firm Dilworth Paxson on November 12, also featured NLRB Member Harry I. Johnson, III. Eric B. Meyer, Dilworth Paxson partner and chair of the firm’s just-launched social media practice group, questioned the panel of federal officials on how their agencies address the thorny legal issues that arise in the age of Facebook.

Far-reaching impact. Social media “has widespread implications” with regard to the National Labor Relations Act, noted Johnson. “A good 10 to 20 percent of our case load has a social media component right now—and that’s just going to increase.”

And as Meyer observed, most of the social media cases that have arisen under the NLRA involve nonunion employers. It’s long been recognized that the NLRA’s reach extends beyond the unionized setting, but the Board of late has increasingly flexed its enforcement muscle outside the union environment, much to the consternation of employers. A source of particular frustration is the agency’s close scrutiny of employer social media policies, some of which the Board has found to be unlawfully broad.

Social media policies. “We could spend quite a bit of time on this topic,” the NLRB’s Griffin said, but he summed it up with a nod to the Board’s traditional standard for scrutinizing any employer policy provisions to decide whether they interfere with employees’ rights under the Act: the relevant question is whether an employee would reasonably construe such a rule as prohibiting employees from engaging in statutorily protected conduct. If so, “then the rule is bad.”

Still, “you have to stay current with the decisions, and look at the individual cases,” his colleague Harry Johnson interjected, alluding to the Board’s growing body of case law on the issue, “because context is everything” when determining whether an employer’s rule is overly restrictive under this standard. The social media rule in question has to be considered within the larger factual circumstances, as a look at the Board’s disparate holdings will attest.

Discipline over online behavior. In addition to rulings scrutinizing social media policies, the Board has resolved cases involving the discipline or discharge of employees for critical comments about the employer on Facebook or other social media. The key inquiry, Griffin explained, is “whether there is some aspect of the way the employee’s communications were made that will cause that individual to lose the protection of the Act.” After deliberating over what legal standard to use in such cases, the Board recently adopted “a libel kind of analysis.”

“Frequently if comments are negative the company’s view is, this is disparagement; this is problematic,” Griffin said. “But very few people engage in protected and concerted activity regarding terms and conditions of employment in order to praise them,” he said. “If you’re going to say people can’t be critical, you’re going to run afoul of people’s right to be critical.”

Employers “can’t make employees chant ‘Everything is awesome’ like in The Lego Movie, added Johnson. “The disparagement that you can act on as an employer really comes down to malice: stating a knowing falsehood, or saying something with reckless disregard as to whether true or untrue. And that is a very high standard to meet.”

The proof is in the posting. It’s not that comments on social media are held to a lower prima facie standard, Johnson clarified. It’s just that social media “makes a lot of these ‘he said, she said’ cases much easier because you have a transcript of what everybody said. Social media is not Las Vegas,” he added, “in that what happens there doesn’t stay there.”

Using an analogy to underscore this point, Griffin added, “It used to be ‘he said, she said’ if a supervisor felt somebody was under the influence. But if you have testing, you have evidence in a way that you don’t when you’re going under the supervisor’s impression. In the same way, a conversation at a bar involves making credibility determinations, but if you have the transcript—someone prints out a screen shot and says ‘look at this,’— it’s a different type of proof.”

A higher standard for employers. Some employers enter the cyberspace fray themselves. But as Johnson warns, “as the employer, you have the power of hiring and firing. So you will be looked at differently than as having a conversation among equals. You’re not on the same footing as an employee when you’re participating out there.” By way of illustration, he cited a recent case in which a Jimmy John’s manager encouraged employees’ online haranguing of a union supporter. “That ruling [against the employer] went 3-0 across party lines,” noted Johnson, one of two Republicans on the Board.

Social media in hiring. “What issues arise when employers use social media to attract new talent or vet job applicants?” Meyer asked the panel. “What happens if I’m screening applicants and someone is critical of a prior employer? Or they see pro-union information on their Facebook page?”

“This is not a new phenomenon,” Johnson said, “These issues have been around for a long time.” He likened the situation to the union movement’s “long-used tactic” of “salting,” noting that the same principles would apply. Like salting, in which an employer violates the NLRA if it refuses to hire an applicant whom it knows to be a union organizer, once an employer has knowledge of an applicant’s online protected activity, an adverse hiring decision can become suspect. “If you don’t hire the person, there has to be a legitimate business justification. You’ll be stuck in a classic mixed-motive kind of defense.”

The EEOC’s Feldblum had much to say on this point, too—given that social media can reveal much more than just an applicant’s union proclivities. “It’s hard not to troll social media,” she conceded. Yet she cautioned that an employer can discover information about prospective employees that it is not permitted to use as the basis for an employment decision. “You can’t ask in a job interview: ‘Are you planning to get pregnant in the next six months?’” But that information can become known to a prospective employer via Facebook. And if the applicant can obtain evidence that you had knowledge about her that you can’t legally act upon, “that’s almost concrete information of a problem.”

Meyer recommended some best practices that employers could adopt to help alleviate this risk. “One way is to have the hiring decision-maker not do the trolling, and have the other person sanitize the information [obtained through social media] and hand the decision-maker a clean sheet to ensure that the hiring decision is made on legitimate business reasons.” Still, the approach is hardly fail-safe, he warned. And Johnson advised, “under the NLRA, there is a pretty liberal ‘imputation of knowledge’ standard. You have to be very cautious if you take that approach. You have to make sure it’s fairly hermetically sealed.”

Social media recruiting. Antidiscrimination laws also are implicated when an employer uses targeted social media recruiting. “Apparently on Facebook you can target to a particular subgroup,” Feldblum said. “Facebook captures all these demographics and advertisers can capture what it is they’re interested in. And when folks buy ads on Facebook they can target, say, women between the ages 18 and 30. Is that a problem? Well, you know you couldn’t put out a job ad saying only those women should apply. So if you’re only using social media to recruit, that could be a problem. And some companies have shifted only to social media.”

“The more interesting question comes when an organization or business feels that it isn’t getting a sufficiently diverse applicant pool, so it uses targeted social media to diversify,” Feldblum said. “That’s got a benign purpose, but it can be a problem.”

Online surveillance. Just as employers can’t undertake surveillance of employees’ protected activities in the brick-and-mortar workplace, surveilling employees’ online activities—or creating the impression that you’re doing so—is a violation of the NLRA. “You cannot spy on your employees,” Johnson stressed. Granted, he noted, it’s a bit more complicated with respect to social media because such activity “usually involves some invitation to connect at some point. But even if it’s a voluntary connection [between employer and employee], it’s good to proceed with caution. If you start dropping hints to them that you’re watching what you’re doing online in terms of conversations, that becomes a trickier issue.”

However, “there is a difference between monitoring for a business purpose and surveillance,” Griffin added. Once again using an analogy from existing law, he explained: “If you have a camera set up for security purposes, generally speaking, that’s not going to be a problem. But if you train the camera ahead of time to focus on a meeting going on in the parking lot where you know employees are going to meet to sign [union authorization] cards, that is going to be a problem. Similarly, if you want to surveil social media activity in order to gauge productivity that’s not a problem. But to target protected online activity is a different issue.”

Scoping out cyber-harassment. On the other hand, an employer can’t simply close its eyes to employees’ social media activity altogether, Feldblum stressed. And just because an employee is posting while off duty doesn’t mean the employer can wash its hands of the whole affair.

“Social media is a 24-7 world,” she said. “And when it comes to the workplace, is there ever such a thing as purely ‘off the clock’ social media? If I post a sexually harassing message at 9 o’clock at night about a coworker, an employer can’t just say ‘I don’t have to worry about that—it happened at 9 o’clock at night.’”

“For the younger generation specifically, they are using social media all the time and they might not think about privacy issues and realize that an employer can follow up on something that occurred outside the workplace. But if an employee posts a sexually harassing post, that can affect the workplace. It can contribute to a sexually harassing environment inside the workplace. As an employer, once you are told about harassment, you have to take reasonably quick efforts to stop that harassment. You do have a responsibility to track down those facts and do something about it. You may have employees asking, ‘what do you mean you want me to show you what I posted on Facebook?,’ but you do.”

“Again, this is about the basic law. You cannot post a sexually harassing cartoon in the cafeteria that clearly identifies a coworker. Nor can you post it on your private Facebook page if it’s then going to affect your workplace.”

Training and other takeaways. Feldblum urged employers to “develop clear and consistent policies and articulate those policies to employees,” adding “I think that’s a good best practice for the EEOC as well: to articulate in guidance the positions of the EEOC on hot topics. I’m constantly pushing for more guidance.”

Aside from a few EEOC federal-sector decisions (the agency acts as adjudicator in cases brought by federal workers) and written responses to letters from stakeholders inquiring about particular technologies, the Commission has yet to issue a formal guidance or informal discussion letter on the use of social media. It sought input from stakeholders in a March 2014 meeting on social media in the workplace, though—presumably with an eye to articulating a formal position on the issue. In contrast, the NLRB, particularly under former acting general counsel Lafe Solomon, has been quite proactive in articulating its evolving position on these questions, issuing a series of reports on the social media cases coming through the agency’s doors.

As Feldblum sees it, the rise of social media gives employers an opening to retrain their managers and employees about the basic rules of employment discrimination and harassment. She urged employers to use the explosion of social media as a chance to reinforce longstanding legal principles.

Johnson reiterated this sentiment. Asked to offer some “best practices” for addressing the interplay between social media and the NLRA, he said that “training is a big part.” In particular: “training on the background principles of what the Board has found lawful or unlawful.”