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Social media and employment law—are courts catching up?

May 14th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Remember back when the two biggest employment law issues involving social media were “ownership” of accounts and a backlash against requesting access to job applicants’ personal profiles? Times have changed, and legal issues have multiplied. But much like the older generation catches up with teenagers who readily adapt to rapidly changing technology, courts are developing precedent that shows a better understanding of how allegations involving the use of social media fit within long-standing law on trade secrets, labor relations, First Amendment rights, discrimination laws, and more. Below are a few emerging issues and court responses.

Discrimination, harassment, and retaliation. Many employment cases involve allegations of social media being used as a vehicle for harassing a coworker or other individual, and employers can be found liable. Facebook and other posts may also be evidence of unlawful intent:

  • Comments lamenting that a “f*cking indian” was made department chair and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied) evidenced hostility that was prevalent in the department, a federal court in Oklahoma found, denying summary judgment on a hostile work environment claim. The employee’s retaliation claim also advanced, partly because the Facebook posts provided a causal link between the denial of tenure and his prior complaints of race discrimination (Hannah v. Northeastern State University).
  • A food service director, who complained that graphic sexual images of her drawn on a bathroom wall had been a topic social network sharing for a month and who lost her job soon after complaining, will take her sexual harassment and retaliation claims to a jury. The court found it significant that the supervisor knew workers were passing around cell phones to view the posts but blew off the employee’s complaints. The fact that the drawings were shared on Facebook during work also supported a finding that the alleged harassment was severe enough to create a hostile environment (Meng v. Aramark Corp.).
  • A court found a triable issue on whether a male EMT was fired in retaliation for reporting sexual harassment by a male coworker or because he refused to sign a letter agreeing to attend anger management after he wrote Facebook posts (the same day the coworker touched him near his crotch) threatening “the mother f***er who thought today was a joke” and stating he would “knock [that individual’s] f***ing teeth out, break [his or her] jaw [and] every bone in [his or her] left arm.” The employee claimed he told HR he was willing to do the training but refused to sign the letter because it purported to exonerate the company for the harassment (Verga v. Emergency Ambulance Service, Inc.).

Labor relations. Facebook, Twitter, and other social media comments can be protected concerted activity or union activity under the NLRA. An NLRB fact sheet explained that in 2010, the Board started receiving charges in regional offices about employer social media policies and specific instances of discipline for postings. In some cases, the agency has found that the communications were protected and that there was reasonable cause to believe an employer’s policies or disciplinary actions violated federal labor law. For example:

  • Although a car dealership cooperated with the NRLB in an investigation over its 2010 handbook provisions on social media, gave the NLRB proposed revisions, and issued a new 2013 handbook after the agency’s review, the Board, in a 2-1 decision found that publication of the new handbook did not effectively repudiate the offending provisions. Merely revising unlawful rules did not remedy unfair labor practices, absent notice to the affected employees that violations occurred and would not be repeated. The overbroad 2010 social media policy prohibited employees from disclosing information about employees or customers; required them to identify themselves when posting comments about the dealership; prohibited them from referring to it in a way that would negatively impact its reputation; prohibited any conduct that even had “the potential to have a negative effect” on the dealership; and allowed the dealership to request access to anything they posted on social media (Boch Imports, Inc. dba Boch Honda).
  • An employer violated NLRA Sec. 8(a)(3) by firing an employee for venting frustration with a manager by posting profanity-filled Facebook comments, ruled a three-member panel of the NLRB. The posting, which was protected and concerted activity, called the manager a “NASTY MOTHER F*CKER” and a “LOSER,” and ended with “Vote YES for the UNION!!!!!!!” His post was visible to Facebook “friends,” including some coworkers. The panel noted that he posted his comments while on break, there was no evidence they interrupted the work environment or relationship with customers, and the comments echoed employees’ prior complaints of disrespectful treatment of employees and encouraged employees to vote for union representation. Disagreeing with Member Johnson’s partial dissent, the majority did not view the use of profanity to be qualitatively different from other profanity regularly tolerated by the employer (Pier Sixty, LLC).
  • The D.C. Circuit refused to hold a union liable for failing to remove derisive and allegedly threatening comments on a Facebook page maintained for union members. Denying a non-union employee’s petition for review of the NLRB order dismissing his charge, the appeals court found it significant that there was no indication that union officials or agents posted the comments and only union members could post or view comments on the page. It declined to address whether the postings would be deemed “threatening” if made by union agents and emphasized that the Board was not foreclosed from ever finding a union guilty of unfair labor practices for postings on “closed” Internet sites (Weigand v. NLRB).

Background checks. Back when employers first started viewing the social media accounts of job applicants as a means of evaluating whether they would make good employees, legal experts cautioned that employers might learn information (such as religion, race, or disability) that could form a basis for a claim that they made employment decisions on prohibited bases. Although that remains a concern, other issues have arisen on the use of social media to evaluate applicants or employees.

For example, a federal court in California dismissed a putative class action under the Fair Credit Reporting Act (FCRA) by LinkedIn users who were allegedly rejected from employment after potential employers contacted individuals identified through LinkedIn’s Reference Search Function. The court explained in detail why search results did not constitute a “consumer report.” Among other reasons, the information was derived solely from LinkedIn’s transactions with the plaintiffs and not from third parties, LinkedIn was not a “consumer reporting agency” under the Act, and the list of possible references was not, itself, used or intended to be used for employment purposes (Sweet v. LinkedIn Corp.).

Class Action notice. Interestingly, social media may be considered by some courts to be an effective means of providing notice to potential class members in class actions. In an ongoing class action wage suit by Gawker Media interns, a federal court in New York granted the plaintiffs’ renewed (and revised) bid for approval of a plan to disseminate notice to potential opt-in plaintiffs via social media. The court had rejected their initial notice plan, concluding that it was overbroad and seemed bent on publicizing Gawker’s alleged wage infractions rather than targeting prospective class members. The court was satisfied that these defects were cured but told the plaintiffs they may not “friend” potential opt-ins on Facebook, and must “unfollow” from Twitter those who don’t join during the opt-in period (Mark v. Gawker Media, LLC).

Evidence, discovery issues. Facebook posts are fair game when it comes to discovery, much to the chagrin of individuals whose posts contradict claims they later make in litigation.

  • A federal court in Louisiana ordered an employee to produce an unredacted copy of his entire Facebook page, finding that his argument that he had deactivated his Facebook account was not persuasive—that was not the same as deleting it, and it was clear from other evidence that he knew how to reactivate his account. Moreover, the employer was entitled to analyze his Facebook messages, particularly given evidence that he messaged a coworker that he injured himself fishing, rather than in a workplace accident on the employer’s vessel, as he had alleged (Crowe v. Marquette Transportation).
  • In the ongoing saga of human-trafficking-related claims against Signal International, which has been accused of trafficking over 500 Indian guestworkers to the U.S. after Hurricane Katrina, a federal court in Louisiana ruled that Signal may not use a previously undisclosed Facebook picture of one plaintiff and his assumed wife as impeachment evidence. Though the picture purportedly conflicted with his deposition testimony that he had not seen his family in over seven years, whether he saw his family was relevant to damages and as such, was substantive. Regardless of its impeachment value, it should have been disclosed to opposing counsel and listed in the proposed pre-trial order; since it was not, it could not be used at trial (David v. Signal International, LLC).
  • In an ADA discrimination suit by the EEOC, Bank of America was denied a motion to compel production of all texts, emails, and social media posts by the complaining employee since 1998. Although discovery of the employee’s ability to communicate in writing was a central issue in the case, the request was overly broad (EEOC v. Bank of America).

Trade secrets. Social media contacts and control of groups linking professionals together based on a common interest can be considered trade secrets:

  • A former employee’s refusal to cede control of a professional LinkedIn group with a membership restricted to 679 of the employer’s current and potential customers supported his former employer’s breach of noncompete, Illinois Trade Secrets Act, and common law misappropriation claims, all of which survived his motion to dismiss. The federal court in Illinois noted that the names of group members would be “extremely valuable” information to competitors (CDM Media USA, Inc. v. Simms).
  • Fact disputes on whether an employee misappropriated trade secrets by maintaining LinkedIn contacts with a company’s clients after his termination precluded summary judgment on his former employer’s claim under California law. Although he argued that LinkedIn contacts do not constitute a trade secret because the employer encouraged employees to use LinkedIn, and because his contacts were viewable by any other contact, the court refused to take judicial notice of LinkedIn’s functions and concluded that a fact issue remained (Cellular Accessories For Less, Inc. v. Trinitas LLC).
  • An employer’s claims that its roster of employees who are touchscreen technology specialists was a trade secret misappropriated by a competitor in its effort to poach the employees was made in bad faith, considering the names of the specialists were obtained from publicly available sources, including LinkedIn. The employer was ordered by a California court to pay the competitor $180,000 in attorneys’ fees (Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc.).

First Amendment cases. Social media posts are considered public speech, and in some cases even clicking “like” in response to someone else has been considered speech. Whether First Amendment protections apply, however, depends on the circumstances of each case.

  • An EMT/medical helicopter pilot, who repeatedly reported a lack of required federal certification of a Medstar helicopter to his employer before going to the FAA and social media, survived a motion to dismiss his First Amendment retaliation claim based on his termination. His speech was not part of his regular duties, addressed a public concern, and a federal court in Florida found no legitimate government interest in disciplining an employee for disclosing malfeasance, especially where he gave the county a chance to address the issues before going public (McAllister v. Lee County).
  • Only one of two police officers disciplined for an off-duty Facebook conversation about rookie cops in leadership positions was protected by the First Amendment. The federal court in Virginia found it significant that there was no showing that his comments created a “reasonable prediction of harm” to police operations. But the police chief was protected by qualified immunity since reasonable officials in his position would not know that disciplining an officer for a Facebook post under department policy would violate constitutional rights. The city was not liable because it never ratified the social networking policy (Liverman v. City of Petersburg).
  • A fired assistant attorney general did not engage in protected speech when he embarked on an online and televised crusade against a gay student affairs president, ruled a Michigan appeals court. His interest was outweighed by the employer’s interest, and the First Amendment did not require the Attorney General to “sit idly by” while he insulted those he was hired to serve and protect (Shirvell v. Department of Attorney General).
  • Finding that a police officer’s “hot-headed” Facebook posts criticizing the police chief’s leadership for failing to send a patrol car to a fallen officer’s funeral were made as a citizen, and perhaps stemmed from a “genuine desire to inform the community,” the Fifth Circuit refused to allow the “‘mere insertion of a scintilla of speech regarding a matter of public concern’ to ‘plant the seed of a constitutional case.’” Further, the department’s interests in maintaining discipline and preventing insubordination outweighed the officer’s First Amendment interest here (Graziosi v. City of Greenville Mississippi).

Other claims. Social media can be part and parcel of traditional harassment and discrimination claims, but cyber-harassment also can be a stand-alone claim in some cases. In addition, social media posts can be cause for a court to impose remedial measures to prevent abusive litigation tactics or to protect individuals’ privacy rights.

  • A California Court of Appeals upheld a restraining order against a CVS manager who allegedly cyber-harassed a former coworker by going through his girlfriend’s Instagram account and posting the coworker’s LinkedIn Profile along with disparaging remarks like “#kickedout” and “#joblessbitch.” The circumstantial evidence amply established that the former coworker was humiliated by the posting and reasonably worried about the impact on her professional reputation (Kwan v. Murcia).
  • A federal court in North Carolina found good cause existed to modify a protective order to require the removal of YouTube videos depicting the deposition of a corporate witness, along with commentary mocking her, which were posted by an employee over a year and a half after her employment discrimination suit was dismissed. Such public mockery implicated reputational and privacy interests of litigants and third parties. The court rejected the employee’s jurisdictional and First Amendment challenges (Springs v. Ally Financial, Inc. fka GMAC, Inc.).
  • Evidence that an employer suspended, fired, and then sued an employee for defamation because she spoke to the media, was featured on Facebook by the media, and complained to OSHA about workplace exposure to chemicals linked to breathing problems suggested to a federal court in Alabama that the Secretary of Labor was likely to succeed on a retaliation claim filed on the employee’s behalf under the OSH Act. The court enjoined the employer from taking adverse actions against employees who exercise rights under the Act (Perez v. Lear Corporation Eeds and Interiors).

State legislatures are also catching up. While courts are in the trenches dealing with individual disputes over the use and control of social media accounts, legislators have been busy crafting laws that also address emerging issues—though these mainly focus on the privacy rights of employees and job applicants. According to the National Conference of State Legislatures, as of April 14, 2015, legislation restricting employers from requesting passwords to personal Internet accounts and otherwise addressing social media have been introduced or considered in at least 22 states in 2015. For example, Virginia recently enacted a social media privacy law that prohibits employers from requiring current or prospective employees to disclose the username or password of their social media accounts and forbids them from retaliating against those who exercise their rights under the law. Employers also are prohibited from requiring an employee to add an employee, supervisor, or an administrator to the list of contacts associated with the employee’s social media account. Montana enacted a similar law, as have other states.

Social media policies generally. Clearly the proliferation of social media communications and images has given rise to an ever-growing number of employee complaints of harassment, discrimination, defamation, privacy violations, and other claims. Plus, there are employers’ interests in protecting the names of customers and potential customers, and in maintaining a positive public image on social media. Due to the changing legal landscape, variation among state laws, and the need to account for an employer’s unique circumstances, there is no one-size-fits-all social media policy that will protect an employer’s interests while ensuring compliance with applicable laws. As a consequence, employers are well advised to obtain legal advice from a local attorney experienced in both employment law and social media before adopting a social media policy and to regularly review their policies to ensure continued compliance.