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Social Media – The Unruly Teenager Whose Growing Pains Continue to Challenge Employment Lawyers and HR Professionals

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By Nathan Lennon

Cincinnati Employment Newsletter
December 13, 2018

Facebook is 15 years old this year. Like many teenagers, Facebook and the plethora of other social media outlets (Instagram, Twitter, etc.) continue to be volatile, and represent constant challenges for the people in charge, particularly where social media and employment law intersect.

From fairly early on in the saturation process of social media over the last two decades, employers began to be concerned about employee conduct “outside” the workplace, whether such outside conduct was in the physical or the virtual worlds. In one notable case from 2009, an intern at Cisco received an employment offer, which was withdrawn after the company became aware that she posted about it online, describing it as an opportunity to “weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” “Cisco Fatty,” as she became known, set off a firestorm of publicity after her offer of employment was withdrawn.

Over the years since, the battle has continued to rage on, as employers try to navigate the legal landscape of social media. From a First Amendment perspective, private employees do not have First Amendment rights, because there is no state action involved in disciplining a private employee. Even so, there are other sources of law which potentially apply to even private employee social media conduct, including the National Labor Relations Act (“NLRA”). In addition, many states have laws that prohibit employers from disciplining employees for off-duty conduct.

The NLRA protects employees’ right to engage in “concerted activities” regarding terms and conditions of employment. Under Obama administration guidance, this was interpreted broadly as applying to an employee’s Facebook post about his employer’s sales event, which the employee derisively alleged included “semi fresh apples” and a “$2.00 cookie plate” to advertise an expensive car. Even though the post was not about “concerted action” with another employee per se, an administrative court found that the post could concern other co-workers’ well-being, because it was potentially directed at concerns about the negative business effects of poorly prepared marketing on the image of the dealership. By extension, the court found that this could in turn have an impact on employee job security.

While many of the state level off-duty conduct laws were drafted to protect employees who used tobacco off the worksite, many of them are written broadly enough to encompass social media activities as well. In addition, at least half of the states now have laws that restrict an employer from accessing both employees’ and applicants’ social media accounts. Depending on the jurisdiction, some of these off-duty conduct laws also regulate or prohibit employers from even requiring applicants to disclose their social media usernames as a condition of employment. Kentucky, for instance, has a statute that prevents employment discrimination due to an employee’s status as a smoker. (See KRS § 344.040). Although Ohio currently has no equivalent, as recently as 2015, a bill was introduced in the Ohio Senate to protect employees from employment action for any lawful off-duty conduct.

On the federal level at least, more recently the Trump administration has moved to relax the legal standards applying to employer social media policies as they relate to the NLRA. By way of example, in January 2018, the NLRB issued a non-binding, internal advice memorandum that defended Google’s firing of an employee over an internal memo he wrote criticizing Google’s diversity hiring policies. When the employee’s memo was leaked to the media, it touched off a public firestorm, because the employee claimed, among other things, that the gender gap in achievement in technology companies could be explained through biological differences in sex. The company fired him for advancing “offensive gender stereotypes” in violation of its policies against harassment and discrimination. In supporting the actions of the employer, the NLRB reasoned that employers should be given “particular deference” in trying to enforce anti-discrimination policies, and “must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a hostile workplace.” Although not a social media decision per se, the recent NLRB memorandum certainly suggests that in a contest between the off-duty speech rights of employees and employers’ corresponding right to enforce reasonable conduct limitations in the workplace, employers may be given a freer hand in the coming years.