Friday, December 17, 2010

Firing An Employee Bad Mouthing the Company on Social Media? Better Think Twice.

As more and more employees lose their jobs for reasons related to social media, more and more social media-related lawsuits fill dockets across America’s courts. Individual, class and union actions have employment law and technology experts paying close attention to these cases to determine the future landscape of social media within the workplace.

According to attorney John R. Lanham, in the January 2010 edition of Morrison Foerster’s ( Employment Law Commentary, “employees’ online communications may gain legal protection based on either the privacy or the substance of the communications.” Mr. Lanham’s article brought to light two very real risks for organizations: 1) the growth of social media-related lawsuits; and, 2) current and developing legislation intended to protect employees from employment-related actions on the basis of things said on social media platforms.

In Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s, two employees of a Hackensack, New Jersey Houston’s Restaurant successfully sued their former employer in an unlawful termination case that stemmed from the employees’ use of social media to disparage the restaurant and its management. In this case, the two employees were terminated for establishing an invitation-only MySpace page for the purpose of allowing employees to vent their dissatisfaction with their employer. Those invited to join the group were existing and former employees – none of which included management.

Management eventually became aware of the MySpace page through an employee that belonged to the MySpace group. The employee provided management with the login ID and password to access the invitation-only MySpace page. In response to the derogatory information posted on the MySpace page about Houston’s management and the company, the two employees that created the MySpace page were terminated for violating the restaurant’s “core values.” The two employees sued Houston’s in federal court and received a favorable ruling in June 2009 when the court found that management had violated the federal Stored Communications Act as well as a comparable state law. The violations were based on the manner in which management gained access to the site. According to the court, the employee that provided management with the user ID and password was perceived to be under duress and feared retaliatory action by management if the user ID and password were not provided.

In another case in October 2010, the National Labor Relations Board (“NLRB”) filed a complaint in Connecticut against American Medical Response of Connecticut, Inc (“AMRC”). The complaint alleges that AMRC violated the National Labor Relations Act (“NLRA”) when it terminated an employee for making disparaging comments on her Facebook page regarding a supervisor. The NLRB alleges that AMRC’s social media policy, which prohibits employees from depicting adversely AMRC in any way on Facebook or other social media sites where pictures of the employees can be posted, violates the NLRA.

The NLRA prohibits employers from punishing workers – whether or not they are union members – for discussing working conditions or unionization. The NLRB claims that this is a case of employees utilizing a social media platform for the purpose of discussing jointly matters related to working conditions, a permissible activity under the NLRA. The NLRB alleges that AMRC’s social media policy was overly broad and denied employees’ right to discuss working conditions among themselves.

These two examples illustrate the challenges that employers currently face in balancing social media risks with human resource risks. According to survey results contained in Proofpoint, Inc.’s ( report, “Outbound Email and Data Loss Prevention in Today’s Enterprise, 2010,” the number of firms that reported social media-related terminations in 2010 remained consistent at seven percent compared to eight percent reported in the 2009 survey. However, this figure is nearly double the rate of four percent cited in the 2008 survey. This data suggests that there is definitely a need for organizations to consider the impact that social media will play in managing employees. The challenge for organizations is establishing the appropriate environment in which an organization can justifiably terminate an employee with the confidence of knowing that it will not likely experience a legal backlash.

Another issue related to employee terminations is the topic of reference letters. While many organizations look favorably upon reference letters for terminated employees, some organizations struggle with the issue. Based upon the popularity of social media platforms such as LinkedIn, it is important for organizations to address instances in which reference letters are permitted. In today’s environment it is very likely that a terminated employee will seek an online reference from a past manager or co-worker. In developing a policy statement regarding reference letters, it is important for the organization to convey to employees through training that online recommendations such as those provided through LinkedIn, are equivalent to reference letters. As such, guidance should be provided to employees to ensure that they comply with the organization’s policy.

Employment law is an extremely complex and evolving area of law. As such, this article cannot adequately address all of the issues that organizations may face when it comes to social media. This post is intended to provide examples of actual cases in an effort to demonstrate the importance of developing a human resources policy that addresses social media use by employees. Unfortunately, employment law relative to social media usage is currently taking shape. As such, it is somewhat difficult to fully define best practices. Regardless, a well thought out approach that incorporates existing best practices with evolving case law will provide for the best protection. Incorporating these practices into the formal written social media policy will provide the best possible protection against claims for unlawful termination.

[This post was edited on December 30, 2010 to add the YouTube videos embedded within.]


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