Social Media and The Workplace

With the explosion of the popularity of social media, it is no surprise that employers are beginning to crack down on how their employees access and interact through these websites. A recent study by OpenDNS showed that 14.2% of employers that chose to block websites on their network block employees from accessing Facebook at work, while only 1.2% block pornographic sites like PornHub and Playboy.[1] According to a report by ProofPoint: 25% of US companies investigated exposure of confidential or proprietary info via blogs and message boards, and 20% of US companies investigated exposure of confidential or proprietary info via blogs and message boards.[2]

But companies need to be mindful of the law as they begin to restrict access to these sites, investigate employees’ use of social media, and discipline employees for the nature of their use.

One of the first legal obstacles to consider regarding how employees can use social media is the 1st Amendment. The 1st Amendment applies to employees of the government because it protects speech from government interference. In April, a US district judge from Virginia threw out a wrongful termination suit by six former employees of a sheriff’s department who claimed they were fired because they “liked” the Facebook Page of the political opponent to the sheriff.[3] The judge ruled that “liking” a page was simply symbolic expression and did not qualify for protection under the 1st Amendment.[4] The judge stated, “Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection.”[5]

The six deputies are appealing this decision, and the ACLU filed an amicus brief on their behalf. The brief says, “Under the district court’s reasoning, affixing a bumper sticker to your car, pinning a campaign pin to your shirt, or placing a sign on your lawn would be devoid of meaning absent further information, and therefore not entitled to constitutional protection because of the minimal effort these actions require. All of these acts are, of course, constitutionally protected.”[6] Facebook also filed an amicus brief criticizing the decision by saying it was “based on an apparent misunderstanding of the way Facebook works” and that the “resulting decision clashes with decades of precedent and bedrock First Amendment principles.”[7]

Marcus Messner, a journalism professor at Virginia Commonwealth University in Richmond who specializes in social-media research, said, “If this ruling is upheld, employees have to be worried that a very basic communication on a social-media platform can lead to their firing. Most people know they should not be talking bad about their job or boss, but to have a political expression in your private life lead to your firing – I think that would change how we communicate online.”[8]

It seems like this judge’s ruling has the potential to greatly limit what falls under the protection of the 1st Amendment to purely written or oral communication. Do you think that “liking” a Facebook page is substantive enough communication to warrant protection of the 1st Amendment?

In dealing with social media interaction of private sector employees, employers need to be aware of the protections afforded by National Labor Relations Act (NLRA). The 1st Amendment does not apply in cases involving private sector employees because the Constitution only protects free speech from government interference.[9]

The principle unfair practice that the NLRA is particularly designed to protect is “concerted activity.” Section 7 of the NLRA defines protected concerted activity by saying: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”[10]  Section 8 of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”[11]

The key determination is whether employees are speaking in an effort to do something about their jobs collectively or merely to complain on their own. Recent cases have extended the protection of the NLRA to the context of social media.[12] The National Labor Relations Board has held that there was “concerted activity” when a domestic violence advocate posted a comment on Facebook asking her co-workers for their opinions on whether they were working hard enough.[13] Protection was also found for an employee who posted regarding the tax withholding policies of his employer because the post was “part of a sequence of events, including other, face-to-face employee conversations, all concerned with employees’ complaints regarding Respondent’s tax treatment of their earnings.”[14]

A key dilemma is that “workers’ rights to collective action often conflict with owners’ desires to control their corporate image.”[15] Do you think that the nature of social media, specifically its reach and permanent nature, should have an affect on whether it is protected by laws that were designed to guarantee workers the right to picket and collectively bargain?

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~ by gator687 on October 21, 2012.

8 Responses to “Social Media and The Workplace”

  1. I think the judge botched the applicable First Amendment law on whether liking a facebook page or comment is expressive. Expressive conduct requires both intent to send a message and a reasonable likelihood that someone would infer a message.Hurley v. Irish-Am., Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). (Cases should be familiar to bloggers who had Jackson’s AA section).

    Liking a facebook page belonging to a local bar or celebrity or cause is done to show your support. Liking a facebook comment demonstrates agreement. A reasonable observer would infer that liking something on facebook is done to demonstrate your agreement with it. (There are people who like a page to follow it or have easier access in order to argue or post negative comments, but those observations would not be reasonable.)

  2. I absolutely agree with ACLU’s argument that liking something on Facebook constitutes free speech. Like Zack, I was in Professor Jackson’s class where we studied what constitutes “expressive conduct” under the First Amendment. Our class was lucky enough to attend oral arguments at the Florida Supreme Court on whether the serving of food to homeless people constituted expressive conduct. Although the Florida Supreme Court found it did not, this Facebook situation seems so much closer to a sign on my lawn than examples where no expressive conduct was found.

    Sometimes people “like” things on Facebook that are meaningless and harmless. For example, someone can “like” rollercoasters, cuddling, and Bill Nye the Science Guy. Each of these do not seem to mean anything. But when someone “likes” Barack Obama or even Big Bird, this can now mean something. A user of Facebook would most likely understand this concept. However, a judge that is unfamiliar with Facebook could easily misinterpret what is really going on. Facebook is a forum for expression, and just because it is easy to click something with just a touch of the mouse, that does not mean the First Amendment should not apply.

  3. I would agree with the two previous posts. Facebook’s “like” feature is specifically designed so that users may express their allegiance to various causes, people and companies. As Nicole pointed out, it seems ridiculous for a judge to deem something unworthy of First Amendment protection because it is too easy. I find the judge’s conclusion all of the more puzzling considering the sheriff’s office that fired the six deputies clearly found that “liking” the opposing candidate was a bold enough statement to warrant firing.
    As to the second question Matt posed, I think the issue of whether comments on social media should be protected by laws permitting workers to picket or collectively barging is more difficult. I think that corporations are entitled to layout a corporate policy for workers use of social networking accounts. Many companies already include ethics clauses in employment agreements that layout how a company will evaluate employees behavior both in and out of work. For example, I worked for a company that required employees to report if they had been arrested within 48 hours of the arrest. After reporting the arrest, the situation was evaluated from by the human resources department who decided whether the employee should be permitted to keep their job. Failure to report being arrested, even if the employee was never ultimately charged with a crime, was ground for immediate termination. The thinking behind this policy was that the behavior of employees often reflects on the company for which they work. Maybe an addendum dealing with Facebook would provide an opportunity for employers and employees with an opportunity to reach a compromise on the proper use of social media. Employers should certainly allow their workers to express political alliances but it may be necessary for employers to have a system to respond to inappropriate use of social networking in order to protect the reputation of the company.

  4. In August of 2012, Illinois passed a law which prohibited employers from asking employees (or job applicants) for their social media account passwords. The Illinois Senate Minority Leader (a Republican) said “Employers certainly aren’t allowed to ask for the keys to an employee’s home to nose around there, and I believe that same expectation of personal privacy and personal space should be extended to a social networking account.” Interestingly, she considered the legislation to be good for employers, as well, because then they would not be subject to lawsuits for discrimination when they went searching for (and found) information about an employee which placed her in a protected class.

    While this legislation only protects “private” information because an employer can always review publicly available social media information without a password, it shows (1) the beginning of an attempt to draw legislative lines as to what is permissible for an employer to know even when employment is subject to various to morals clauses and (2) that employers need to be careful what they want to find out about employees because, when they do, they just might be called into court for it. I would be surprised, given this trend, if the Virginia decision was upheld.

  5. I struggle to find the persuasiveness in the argument that employers have a legitimate interest in the off-the-clock social actions of their employees because the employee’s behavior can reflect on the employer. It is simply another intrusion of power into the private lives of individuals in an effort to subdue the working class. Anything that can reduce individual thought and creativity serves to keep the disposable work force focused on subsistence and by meddling in the affairs of an employee’s private life that employee now has to restrict and repress his expression (of anything) in order to keep a job. Marx would have a field day.

    The Virginia ruling is per se wrong for all the reasons outlined by my peers above and hopefully it will be appealed to a judge that understands the realities of the new technologically centered generations who will be impacted the most.

  6. I agree with the comments posted previously. I believe our social media profiles are private and should only be considered by employers in certain circumstances. It seems like a violation of privacy, violation of our freedom of expression, or a fishing expedition if employers are seeking information from their employees’ facebooks or other social media websites. Regardless of what we “like” or don’t “like” on facebook and the first amendment issues there, it seems that the boundaries between our personal lives and professional lives have melded together since the arrival of social media. In the past, people only had to worry about their criminal records and anything that could come up in a background check when it came to their professional careers, but now anything we do on the internet can be used against us. It is an unfortunate time that we live in, especially since social media is supposed to benefit us by expanding our networks and allowing us to be part of a more cultured, global community. What we didn’t know was that employers, the police, and practically anyone could use social media websites to gather information about us, both good and bad.

    I think there needs to be a line drawn at how much an employer can dig for, depending on the circumstances of course. For example, it seems reasonable for an employer to look through a potential employee’s social media website if the employer is the federal government that is seeking to hire someone for a position within the FBI or CIA. Also, it would seem reasonable for a high-profile law firm whose success is based on the impeccable reputation of their attorneys to seek information about their potential employees through social media websites. But of course, these are special circumstances and in most cases, it does not seem reasonable for employers to use personal social media websites as a means to gather information about their employees, especially when a single “like” can cause the employer to terminate the employee. The problem here is that it is extremely difficult to define where we need to draw the line, and I’m honestly not sure we will ever be able to achieve that.

  7. I agree with Nicole, just because “liking” something on Facebook is done easily, merely by clicking a mouse, does not mean it should not be afforded protection under the First Amendment. Users of Facebook understand the concept of liking comments or statuses, and would undoubtedly understand the message being sent by a user liking a certain political group or organization. Even liking mundane things such as TV personalities or restaurants is intended to send some sort of message. It may not be a politically incensed message but it is still conduct that expresses some sort of message.

    While feeding the homeless was found to not express any message, liking something on Facebook seems to fall into a completely different category of expression. A user that likes something on Facebook is directly expressing their views towards a certain message or organization. To penalize someone for expressing such views seems to me to be as much a denial of one’s First Amendment rights as not allowing someone to hold a sign with a message in a public park or courtyard.

  8. I think facebook is correct, this decision demonstrates how an aged judiciary is out of touch with new technology. If this had been a case were the six fired individuals had expressed their political views by actually saying I like the political opponent, it would have been a clear cut First Amendment violation. The only difference between the case at hand and the hypothetical I just proposed is use of a new technology. To decide that “liking” something on Facebook does not meet the requirements of the First Amendment shows just how out of touch some courts are with new technology. The act of clicking the like button on facebook is essentially the same as typing out or writing out “I like this.” Therefore, it should be afforded the same protection that would be provided to any other written expression.

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