Is it time to rework your social media policy?by
Let’s face it, social media and employment don’t mix very well.
Every week, another embarrassing tweet by an employee or an employer’s (over-)reaction to Facebook seems to make the headlines, adding weight to the argument that the two should be kept as far apart as possible. But while this proposition may sound ideal, it is, in fact, unrealistic as more and more people and organisations join social networks in order to communicate and connect. As a result, it makes sense for employers to adopt a firm, but fair, approach to the social media issue. But how can they ensure that they get the right balance between protecting employees’ rights to freedom of expression and their own reputation? Recent cases from both the UK and US offer some guidance: In Mr. Adrian Smith v Trafford Housing Trust  EWHC 3221 (Ch), an employee successfully sued his employer in the High Court for breach of contract, following his demotion and significant reduction in salary for expressing opposition to gay marriage, on his private Facebook page and in his own time. His employer deemed such activity to be contrary to its code of conduct on the basis that they were religious or political views, which could upset his colleagues. But the court found that such behaviour was not gross misconduct and the Trust was wrong to have demoted him in such circumstances. Another recent example comes courtesy of the ongoing debacle involving Stella Creasy, MP, and online lender, Wonga. An investigation by the Guardian revealed that abusive tweets referring to Creasy could (although sent from an anonymous Twitter account) be traced to a Wonga computer. Wonga admitted that a “junior employee” might have made unauthorised comments and would be disciplined for the tweets, if found responsible. Fine line While not every Twitter row results in an investigation by a national newspaper and the public ‘unmasking’ of the culprit and his or her employer, it does serve as a useful reminder that, left unchecked, employees’ use of social media can cause considerable damage. With this point in mind, therefore, a well-drafted social media policy should always deal with how to ‘clean up’ afterwards. This includes requiring offenders to remove inappropriate online comments immediately and reporting any abuse of colleagues via the medium. Employers have a fine line to tread between introducing a heavy-handed policy that infringes employees’ rights and allowing them to undertake social media activity with impunity. But there is a growing body of opinion and case law on both sides of the Atlantic, including two new decisions by the US National Labor Relations Board, which helps to delineate the boundaries between social media activity that is protected by freedom of expression provisions and activity that is not. In a ruling that is perhaps of most interest to UK employers, Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (28 September, 2012), the NLRB agreed that the employer could properly terminate the employment contract of an employee who made Facebook postings about an embarrassing automobile accident at a Land Rover dealership owned by the employer. The action involved a customer’s son who was allowed to sit behind the wheel of a Land Rover at the end of a test drive and apparently hit the accelerator, driving the vehicle into a pond. The employee posted accident pictures and used the caption: “This is your car. This is your car on drugs.” The NLRB found that the posting was “obviously unprotected by the [National Labor Relations Act]” because it was posted by the employee solely as “a lark” and with no connection to any employment terms or conditions. (Section 7 of the NLRA permits employees to engage in “concerted activity” ie activity that expresses views about issues of mutual interest to other employees. This includes commentary on wages or other terms and conditions of employment. Adverse employment actions, such as terminations, violate the NLRA and are illegal). This result is similar to decisions by UK employment tribunals, which have found that certain employee remarks on social media sites are not protected by freedom of expression provisions under Article 10 of the European Convention on Human Rights. Explicit discussion Examples here include Preece v. J.D. Wetherspoons plc, ET Case No. 2104806/10 and Crisp v. Apple Retail (UK Ltd), ET Case No. 1500258/11. Back to the US, meanwhile, and in Costco Wholesale Club, Case No. 34-CA012421 (7 September, 2012), the NLRB found that Costco’s electronic posting rules were too broad and could infringe employees’ Section 7 rights. Costco’s policy had banned workers from posting statements online that harmed either the company’s reputation or anyone else’s. The Board’s decision laid out no specialised criteria for evaluating whether social media policy-based usage restrictions inhibited employee rights. But it held that Costco’s policy was too broad because it could be read as a ban on protesting about the company’s treatment of its workers. The policy was also criticised because it failed to suggest that protected activity was excluded. As a result, it appears that employers would be wise to include such a disclaimer in their policies. While the decision may not have been explicit, it would be advisable for them to give specific examples of the types of conduct that their policies target, such as not giving away trade secrets or not disclosing protected customer information. In the Karl Knauz Motors case discussed above, the majority of the Board likewise found that the employer’s handbook, which simply called for “courtesy” on the part of employees, was unlawful because employees could interpret it as encroaching on their Section 7 rights. Again, this scenario could have been prevented by a more explicit discussion of what types of behaviour were permitted and which were prohibited. The common factors across all dismissals for social media-related misconduct and corresponding unfair dismissal claims to date is the employee’s lack of awareness about the impact on others of their online habits as well as the employers’ lack of knowledge about how to handle the situation. Broad brushstrokes and cover-all clauses are too far-reaching to be fair. This means that employers need to be careful about documenting their procedures for handling breaches and wording their social media policies clearly to ensure that employees understand exactly what is or what is not acceptable behaviour.
Scott Cairns is an employment partner, and Andrea Ward is a senior associate with law firm, McGuireWoods.