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Social media policies necessary, but wield them judiciously


WASHINGTON — Kneeling football players protesting the state of race relations in the United States and a terminated male Google employee who disparaged gender diversity efforts in the technology industry highlight the importance of employers having practical, enforceable social media policies for their employees, yet carefully considering when discipline against employees violating these policies is warranted.

Colin Kaepernick began kneeling during the national anthem in 2016 in protest of the treatment of minorities in the United States — a movement that accelerated across the National Football League when President Donald Trump tweeted his opposition to the protests multiple times. The protesting players initially received the support of several of their employers, although some NFL owners later criticized the players’ stance.

Former Google engineer James Damore was fired in August after writing a memo in which he suggested that women are less biologically suited to work in the tech industry than men — portions of which the Mountainview, California-based technology company said violated its code of conduct.

However, employers must consider whether such discipline or action creates an even bigger problem, Melinda Burrows, senior legal director with software company NetScout Systems Inc. in Westford, Massachusetts, told attendees of the American Bar Association’s annual Labor and Employment Law Conference in Washington on Thursday.

“Employers need to know what is out there on social media,” she said. “In this day and age … not knowing is just not an option. If you’re a large enough organization, you need to have someone whose job it is to monitor. When you see something that gets people’s attention, I always start with the ‘so what’ test. How big a deal is this really? Is it content that requires you to react?”

For example, employers may want to follow up if the social media content includes allegations of sexual harassment, Ms. Burrows said.

Employers need to keep in mind that employees have a right to gather and discuss concerns, including online via social media, said Julia Campins, an attorney with Lafayette, California-based Campins Benham-Baker P.C.

A 2014 National Labor Relations Board case called Three D L.L.C. d/b/a Triple Play involved social media liking and a Facebook discussion by two employees, who were terminated by their restaurant employer, related to claims that employees unexpectedly owed additional state income taxes because of the company’s withholding mistakes. Section 7 provides employees the right to discuss wages, hours and other terms and conditions of employment with fellow employees as well as nonemployees, meaning an employer’s personnel policy that specifically prohibits employee discussions of identified Section 7 topics or that an employee would reasonably understand to prohibit such discussions violates the National Labor Relations Act, according to the panelists.

“A very good question to ask is why are we talking about social media in the workplace?” said Joane Wong, New York-based senior attorney with the NLRB. “That’s how we communicate these days. We no longer just talk to our co-workers face to face or pick up the phone. Instead, we type out our concerns and press send, or we post something or press like. Now we have people pressing buttons and everything’s written out and is discoverable.”

A separate 2014 NRLB case involving Richmond District Neighborhood Center resulted in the loss of protected status for concerted Facebook conversation between two employees where the employees described in detail their acts of insubordination.

However, employers should assess these situations to determine if there is “anything to the complaints,” Ms. Burrows said. “There could be issues in your workplace you need to get on top of. Sometimes people aren’t using their help lines, their ethics lines anymore. This is where you’re going to get that kind of information.”

In a 2014 NLRB case known as Purple Communications Inc., the agency set out a new rule allowing employees access to company-owned email system for protected Section 7 activities on nonworking time, overruling a 2007 precedent that employees have no statutory right to use their employer’s email systems for Section 7 purposes, according to the panelists. This case emanated from a communications technology company that had an email policy stating that communications sent via all equipment provided and maintained by the company were the sole and exclusive property of the company.

Ms. Campins said these types of policies are “pervasive” and “restrictive,” but still cautions clients “don’t ever do anything on the employer computer,” because the board’s stance on these issues could change again.

“As a practical matter, a policy like this could never be enforced, at least not on a consistent manner, which then limits your ability to act on any violations of it,” Ms. Burrows said. “Regardless of anything that you say in a policy, employees have some level expectation of privacy in the workplace and to not allow them some expectation of privacy is going to have huge employee morale implications.”