Michael R. Palumbo
Introduction: This is the eighth article in a series of short informational pieces relating to one of the hottest topics in litigation over the past five years - electronic discovery. The purpose of these articles is to provide your business entity with some guidelines on how to most efficiently organize to deal with electronic discovery. The articles will continue to be emailed regularly over the next few months. If you are new to our distribution, or if you would like to view previous articles in this series relating to ESI, visit our website.
Facebook, My Space, LinkedIn, Plaxo, Twitter, Skype, YouTube, Blogs, etc...you name it; almost everyone is doing it. Social Networking that is.
A social networking site has been defined as a "web-based service...that allow[s] individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system." Boyd and Ellison, "Social Network Sites: Definition, History, and Scholarship," Journal of Computer Mediated Communication (2007).
Social networks can be a Pandora's box for an employer. Significant risks are presented by the very nature of social networking sites.
Following are some situations where social networking has caused embarrassment to an employer, drawn regulatory attention, or led to negative litigation consequences:
- In 2010 and 2011, the National Labor Relations Board (NLRB) brought several complaints against businesses that disciplined employees for posting comments about the company on social networks (See discussion below);
- In April 2009, a Wall Street Journal article reported that the SEC is monitoring corporate communications made via Twitter to ensure trading rules are not violated;
- In April 2009, a Domino's Pizza employee posted an allegedly humorous video about how pizzas are made. The video included unhygienic and rude behavior, as well as employees mocking customers.
- In October 2008, Virgin Airlines flight attendants posted disparaging remarks about the company's airplanes and customers.
A major concern to employers is the admissibility of information posted on social media sites being presented as evidence during litigation proceedings. The discoverability of this information does not require a technology savvy attorney; it is simply out there for the taking.
On the other hand, an employer may benefit from discovery of information posted to social networks, as exemplified in the Indiana Federal District Court case, EEOC v. Simply Storage Management, Inc., (S.D. Ind. May 11, 2010) involving a claim for emotional injury by an employee. The court allowed Simply Storage Management to obtain discovery from the plaintiff's Facebook and MySpace accounts, noting "it is reasonable to expect severe emotional or mental injury to manifest itself in some [social networking] content."
Another possible risk regarding social media is being caught in untruths. Last year, a Canadian who had taken a leave of absence from her job to battle depression, announced that her insurance provider, Manulife, had revoked her health benefits after discovering photos on her Facebook page depicting her attending a Chippendales show, celebrating a birthday and enjoying a day at the beach.
An example of this from the legal world is the situation where a lawyer was found to have committed an ethical violation and to have incurred the wrath of a judge by making a false statement about the supposed death of her father in order to obtain a continuance of a deadline. The tech savvy judge logged on to her Facebook page and determined that she was out and about socially instead of participating in funeral related activities. This can just as easily happen in your business. Surely, employers want to minimize these types of problems, but, the question is how to effectively do that.
As noted above, there has been a rash of cases involving the limits of an employer's ability to control employee interaction on social networks. Although many companies have implemented social-media policies prohibiting employees from posting disparaging comments or sharing confidential company information on the Internet, policies that totally prohibit such postings have been called into question.
One of the complaints filed by the NLRB was against a Connecticut ambulance service company that terminated an employee for violating its social-media policy that stated "Employees are prohibited from making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." Specifically, the employee posted a negative comment about her supervisor (she called him a "17", a term for a psychiatric patient, and a "scumbag" among other things ) on her personal Facebook page and co-workers thereafter posted similar comments. The Company suspended, and eventually terminated, the employee because the postings violated the Company's Internet policies. The NLRB Complaint alleged that the Company implemented and enforced an overly broad policy concerning blogging and Internet posting because it prohibited employees from making disparaging remarks when discussing the company or supervisors, and prohibited employees from depicting the company in any way over the Internet without company permission. The NLRB contended that the policy was too broad in that it interfered with the recognized employee right to discuss the terms and conditions of employment with co-workers and others. There was a settlement of this matter in January 2011, resulting in the employer's modification of its social networking policy specifically relating to personal internet communications regarding work-related issues.
As similar situation arose in May of this year (2011) when the NLRB filed a complaint against a Chicago BMW dealership that allegedly unlawfully fired a sales person for Facebook comments critical of the employer. The salesperson posted photos and commentary critical that only hot dogs and bottled water were offered to customers at a promotional event. The Complaint was based on the same rationale as the Connecticut case, discussed above. This matter has not been resolved one way or the other.
On the other hand, in a matter arising out of Tucson, Arizona, an Arizona Daily Star reporter was terminated for inappropriate and unprofessional tweets. The newspaper did not have a social networking policy and, in fact, urged its reporters to use social media on the job. The reporter in question was terminated for purportedly unprofessional, sexually inappropriate and pro-violence tweets, including one where he referred to TV station reporter as "stupid." The reporter filed an unfair labor practice charge with the NLRB; however, the NLRB dismissed the charge. It concluded that, since the comments did not relate to the conditions of employment, the termination was lawful.
More and more business are learning that social networking, used properly, can be an effective business tool. Businesses are also learning that imposing significant restrictions on the use of social media are, not only possibly illegal, but often counterproductive to a dynamic work place. Nevertheless, employers still need to exert some control over the use of social networks, especially where employees are presenting themselves as representatives of the company or are discussing company related affairs. What follows are some suggestions that have been offered by commentators in this field:
- The policy should include a statement that the company believes social networking is an important form of communication.
- The policy should make it clear that social networking activities are not to interfere with the employee's primary job responsibilities.
- The policy should contain a non-exclusive list of social networking risks posed to the company. Specifically, since most social network sites contain identifying information, including work information, the policy should emphasize that postings are likely to reflect on the company and its image. The policy should impress upon the employee that they need to take responsibility for representing the company in a professional manner.
- The policy should describe what activities are and are not permitted, and what type of permission is necessary. Specifically, the policy should prohibit social networking communications relating to confidential, sensitive or legal matters.
- The policy should state who is covered by the policy's mandates.
- The policy should walk the fine line between protecting the company and respecting the rights of employees to freedom of speech.
- The policy should include a reminder of existing policies, particularly those related to harassment, discrimination, confidentiality, privacy and disclosure, and should discuss training and dissemination of policy information.
- The policy should emphasize the use of good judgment and mandates the use of a "personal opinion only" disclaimer.
- The policy should reference the company's code of ethics (i.e., do not disrespect employees, competitors, business partners, etc.).
If your company needs assistance in formulating a social networking policy, or would like to further discuss issues related to a social networking issues in the work place, please contact Valerie Walker, 602-262-5844.
In the next Legal Watch Series: Preparing for E-Discovery newsletter, we will be discussing the issue of an employee's expectation of privacy when using a company-issued computer, cell phone and/or pda.
About the Author
For more information or questions regarding E-Discovery and the Rules for Electronically Stored Information Management, contact Michael R. Palumbo.
Michael R. Palumbo focuses his practice on commercial and real estate litigation. Particular areas of experience include banking (UCC Articles 3 & 4) litigation; title insurance, escrow agent and Deed of Trust litigation; and quiet title, adverse possession, homeowners' associations and real estate agent disputes. He has participated in more than 50 trials in the Superior Courts of Arizona and District Court of Arizona, in most of which he was lead counsel. Mr. Palumbo can be reached at 602.262.5931 or firstname.lastname@example.org.