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Social Media and Employer Liability—What You Need to Know

In the 21st century, social media is a fact of life.  Facebook, Twitter, Instagram and Snapchat are pervasive, even in the workplace.  According to one 2012 study by Silk Road Technology,  75 percent of workers log on to social media sites while at work, and many do so multiple times each day.

Social Media and Employer Liability Photo

Social Media and Employer Liability Photo

Employers, too, use social media–to communicate with remote employees, promote collaboration and employee engagement, and recruit new talent. Some human resource departments even engage in “social media background checks,” searching prospective employees’ Facebook pages and Twitter feeds before making an offer of employment.

Nor is social media in the workplace bad for business. According to recent studies, employees who rely heavily on social media are more creative, collaborative and productive at work. Nonetheless, Jacqueline A. Berrien, Chair at the Equal Employment Opportunity Commission, recently warned employers that social media usage –both at and outside of work –has the potential to increase employer liability for everything from discrimination and harassment to regulatory actions under the National Labor Relations Act.

Employer Liability and Social Media Policies

One area in which employers face potential liability is in the creation and enforcement of social media policies, specifically blanket policies aimed at blocking employees from making disparaging comments on social media about the company. Such broad policies typically violate the NLRA, which protects the rights of employees to engage in “concerted activity,” such as discussions of terms of employment, wages and working conditions.

For example, in December 2012, the NLRB decided in favor of five employees who were fired from a non-profit for Facebook posts that discussed another worker who intended to complain about their performance to a supervisor.  In its ruling, the Board deemed the discussions to be “protected concerted activity” and the firings unlawful.

However, the NLRB has also held that these protections typically do not apply to social media posts by a single, disgruntled employee. In order to be protected, communications must be work-related and involve a discussion between two or more employees (e.g. an exercise of collective bargaining rights.)

Employer Liability for Harassment or Discrimination

Employers also need to exercise caution when making employment decisions using information from social media sites of potential or actual employees. Although such actions are not necessarily illegal, they may be discriminatory if they are made on “prohibited bases,” such as race, gender, national origin, color, religion, age or disability, according to Carol Miaskoff, Associate Legal Counsel to the Equal Employment Opportunity Commission. Additionally, employers who demand employees’ passwords or force employees to access their social media accounts in front of the employer may be breaking the law. Eleven states* have enacted legislation specifically prohibiting such actions, and many have made it illegal to retaliate against an employee who refuses to provide an employer access to his social media account.

Social media also leaves employers open to claims of harassment, even when the harassment is being carried out by an employee. Supervisors who are aware of or participate in such actions are particularly vulnerable to regulatory actions and lawsuits. For example, when Peter TerVeer, an employee of the Library of Congress, was subjected to workplace harassment by other employees and his supervisor after he “liked” a Facebook page about gay adoption, he filed a complaint with the EEOC and sued the supervisor, John Mech. Although the case has not yet been decided, a recent Circuit Court decision allowing Mr. TerVeer’s claim of sexual discrimination based on sexual stereotyping—illegal under Title VII of the Civil Rights Act of 1964 — makes it likely he will prevail.

Employer Liability for Copyright Infringement

Social media channels provide employees an opportunity to brag about their employer’s accomplishments, which is generally a good thing. However, if an overly enthusiastic employee reveals proprietary information prematurely and harms a third party, the employer may be help legally liable. Further, employees who post copied content, such as photos or news stories, on company websites may inadvertently violate copyright laws, exposing the employer to liability.

Social media channels provide both opportunities and challenges to employers in the United States, and the laws around their usage in the workplace are evolving every day. That’s why employers need advice about protecting themselves from social-media liability claims.

Don’t wait for an employee lawsuit to get the guidance you need. Contact one of our employer liability insurance experts today. Just call us at 516-292-3780 to set up an appointment for your insurance review, or request a free consultation online now.

 

* Nevada, Maryland, Illinois, California, Michigan, New Mexico, Utah, Arkansas, Oregon, Washington and Colorado.

 

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Floyd Arthur

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