Dallas Bar Association

Social Media and Employment Law

by Vanessa Griffith

The use of social media by employees, including social networking sites, micro-blogs and blogs, wikis, and other online services is prevalent and increasing. As the usage of such services increases, the law is struggling to catch up. In the meantime, as the law evolves, employers and employees will face uncertainties in understanding the legal consequences of social media usage.

Employers are particularly concerned that their employees’ online postings could lead to liability for employment claims. For example, could an employee’s off-duty online statements about a co-worker or subordinate result in a harassment claim against the employer? In most instances, the answer is “no.” An employer cannot be held liable for conduct that occurs outside of workplace by off-duty employees unless there is some nexus between the conduct and the work environment.

The recent decision in Summa v. Hofstra University (E.D.N.Y Apr. 7, 2011) illustrates this point. The plaintiff brought discrimination and harassment claims against her employer, relying in part on an offensive Facebook posting by an athlete with whom she worked. The court concluded that the posting was unconnected to her work and would be considered only because it had been reported by the plaintiff to her employer. Even then, the court indicated the posting was of limited relevance.

Nonetheless, employers should not assume that off-duty, online harassment could never give rise to a claim, particularly if the offending statements are brought to the employer’s attention or have some connection to workplace. Moreover, such commentary could be relevant to show bias if a decision-maker posts discriminatory comments online, regardless of the circumstances of the posting.

Other claims that could potentially be brought against employers based on an employee’s online activity include torts such as defamation, invasion of privacy and, in some states, infliction of emotional distress. Under Texas law, employers could be vicariously liable for such statements, even if unauthorized, if the employee was acting within the scope of his authority, and for the benefit of the employer.

In light of these and other related concerns, employers must decide whether to implement a specific social media policy. For most employers, the answer to the first question is a qualified “yes.” Qualified because social media policies are currently under scrutiny by the National Labor Relations Board for potential violations of employee rights to engage in concerted activity—a right that extends to employees regardless of whether they are represented by a union.

The National Labor Relations Act protects employees’ right to communicate with co-workers about the terms and conditions of employment. The Board has found, for example, that an employee who was fired for calling his manager offensive and vulgar names had engaged in statutorily-protected activity. Consistent with this view, the Board has filed complaints against employers whose social media policies allegedly interfered with their employees’ rights under the NLRA by prohibiting disparaging remarks about supervisors. One of these complaints was recently settled when the employer agreed to narrow the scope of restricted activities in its social media policy. Unfortunately, this means that employers are still without definitive guidance as to the permissible scope of such actions.

Employer-implemented social media policies face practical challenges as well. Many employees mistakenly believe that their online activity is both private and protected by the First Amendment and, therefore, should not be regulated by employer-issued policies. Of course, regardless of what privacy settings employees use, there is little to prevent postings from being shown, copied, or redistributed by the intended recipients to third parties. Moreover, courts are increasingly receptive to permitting discovery of online activity, provided the party seeking such information has a reasonable basis for the request.

As for the First Amendment, it provides little protection for most employees. The First Amendment restrains only government action and does not restrict private sector employers from taking disciplinary action based on their employees’ online conduct. Moreover, although the First Amendment does apply to public employers, they still have wide latitude to regulate their employees’ online speech provided the content of the speech is not a matter of public concern. Most employee online activity that discusses work-related issues will fall outside this category and will lack First Amendment protection.

Although employees may find no recourse under the constitution, a limited number of states (not including Texas) have enacted statutes that prohibit adverse employment action based on an employee’s lawful off-duty conduct. These statutes were enacted primarily to prevent employers from firing employees for smoking, but may protect employees whose online conduct offends their employer but does not otherwise violate the law.

Vanessa Griffith is a partner in Vinson & Elkins LLP who specializes in representing employers in labor and employment matters. She can be reached at vgriffith@velaw.com.

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