Social Media: A Tool and a Trap for Employers
(August 2011) - Whether you want to accept it or not (and I know some choose not), we live in a digital era. Everything from the television shows we watch, the music we listen to, the books we read and the information we access is digitally stored and displayed. The way we create, access and communicate information has forever changed. The amount of information we can access and the numerous ways in which we can access it is remarkable. This fact has not only impacted the way I practice law, but it has changed the way businesses operate.
This is particularly true when considering the use of social media – an important and ever growing aspect of our digital world. Facebook, LinkedIn and Twitter, and also blogs and podcasts, provide instant, detailed information about the user or author. From an employment perspective, social media has created opportunities and pitfalls when addressing issues such as hiring and firing and union activity, and also potential liability for harassment claims, copyright infringement, trade secret claims and defamation. The most effective way to limit exposure to the potential pitfalls while taking advantage of the opportunities is to develop clear policies regarding the use of social media.
The area in which employers are increasingly encountering problems is when action is taken against employee’s who have posted information on a social website to which an employer objects. While an employer may generally prohibit an employee’s access to, and posting of, information while using technology (e.g. computers, tablets, smartphones, etc.) provided by and paid for by the employer, any limitations must be tailored so that they do not inhibit an employee’s lawfully protected activity, such as that pertaining to union organization. The National Labor Relations Board has experienced an increased case load regarding negative employment actions taken against employees who have been disciplined for posting information on social media sites. The disgruntled employees are claiming that the posting activity is protected by Article 7 of the National Labor Relations Act, which protects an employee’s “concerted activity.” While not specifically defined by the Act, courts have interpreted concerted activity in reference to Congress' intent to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of employment. The precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity is unclear and subject to interpretation in court based on the facts in each case. Because these cases are fact specific, and the outcome of such matters often turns on the interpretation of a single word or phrase, an employer must carefully consider the employee’s actions before proceeding with discipline.
While this article addresses social media in the context of the National Labor Relations Act, it only scratches the surface of the Act’s applicability to social media. Also, Ohio’s courts are addressing cases with increasing frequency related to the impact of social media on business issues ranging from business development and marketing to protecting confidential information and trade secrets to disclosure of confidential patient information. Employers must recognize the inherent value of social media while also protecting against its risks. The best first step for employers is to evaluate their current policies and make changes where needed. For more information, contact Brian Mertes at (330) 456-8341 or at .
