5 Social Media Questions All Employers Should Consider

Five Social Media Questions All
Employers Should Consider
© 2015 Fredrikson & Byron, P.A.

About the Authors
Teresa Thompson
Employment Law Attorney
612.492.7347
tthompson@fredlaw.com
Norah Olson Bluvshtein
612.492.7299
nolsonbluvshtein@fredlaw.com
2

Leveraging social media is critical
to the success of any business today.
Customers use social media as a source for reviews and
“word of mouth” referrals.
© 2015 Fredrikson & Byron, P.A.3

Without a social media strategy, businesses
will miss a key opportunity.
With opportunity, however, comes risk, as
organizations need to:
• Protect private information
• Manage liability relating to employee use
(and misuse) of social media
• Preserve their online image and brand
4

In this guide, you will find
five key questions relating to
social media that all employers
should consider.
5

Question One:
When is it okay to fire an employee for a social
media post?
Five Social Media Questions
All Employers Should Consider

Employees engage in – and post about – all sorts of questionable
activities. And, more often than not, one of the employee’s coworkers
will see the post and provide a copy to management.
When that happens, and when the post is
particularly inflammatory, the knee jerk
reaction may be to fire the employee
for the post.
But as most savvy employers know, not all
posts are created equal. Some are legally
protected and cannot form the basis for a
termination decision. Others are not.
As a result, employers should step back and do some analysis (and seek legal
counsel) before engaging in a “Facebook firing.”

Is the post protected activity?
Some social media posts are protected by state or federal laws. For example, under
Section 7 of the National Labor Relations Act (NLRA), employees have the right to
discuss the terms and conditions of their employment, and that term is interpreted
extremely broadly.
Classic examples include an employee’s right to discuss his or her wages with
other employees, and an employee’s right to criticize his or her supervisor.

Here are a few examples of how employees’ rights under the NLRA play
out when employees are terminated for their social media activities:
American Medical Response
In the case that seems to have started the wave of National Labor Relations Board
(NLRB) cases dealing with Facebook firings, paramedics at an emergency response
company engaged in the following posts about their supervisor:
Employee: “Looks like I’m getting some time off. Love how the company allows a 17 [AMR code
for a psychiatric patient] to be a supervisor.”
Coworker: “What happened?”
Employee: “Frank being a dick.” … “Yep he’s a scumbag as usual.” …
After the employee was terminated for the posts, the employee brought an unfair labor
practice charge. The NLRB found the termination unlawful, in part because the
paramedic engaged in protected conduct by protesting a “supervisory” action.
9

Martin House, Inc.
After a series of cases similar to American Medical Response, the NLRB began
issuing opinions that appeared to place some limits on the type of posts employees
could get away with – finding some social media posts were not in fact protected. For
example, in Martin House, Inc., the employee (a recovery specialist at a residential
home for residents with mental health issues) posted as follows:
Employee: “Spooky is overnight, third floor, alone in a mental institution, btw Im
not a client, not yet anyway.
Employee: “My dear client ms 1 is cracking up at my post, I don’t know if shes
laughing at me, with me or at her voices, not that it matters, good to laugh.”
Here, the posts were found not to be protected activity because the employee had not
engaged in concerted activity with co-workers. While the employee engaged in
conversation about the above posts with Facebook friends, these friends were not
employees of Martin House. Therefore, the NLRB found that the employee was
“merely communicating with her personal friends” and found no violation.
10

Triple Play Sports Bar and Grille
In a swing back toward finding protected concerted activity, the NLRB has argued
that even “liking” a comment complaining about a boss’s behavior may be
protected. In Triple Play, several employees were fired following these Facebook
comments and the associated “likes”:
Coworker 1: “Maybe someone should do the owners of Triple Play a favor and buy it from
them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!”
Coworker 2: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board
to look into it bc he still owes me about 2000 in paychecks.”
Employee: “I owe too. Such an a**hole.”
Because the comments and “likes” were between coworkers regarding a work
dispute, the NLRB found they were protected concerted activity. Additionally, the
Board found that Triple Play broke the law by threatening their ex-employees with a
defamation suit unless they retracted their Facebook comments.
11

Pier Sixty, LLC
In another recent case, the NLRB appears to be veering even further to the extreme,
finding even inflammatory posts protected. In Pier Sixty, LLC, an employee who was
upset with the way his supervisor was treating him, took a break from work and posted
this:
“Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!!! F*** his
mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
Even though the post was filled with profanity, the NLRB found that his post was
protected under the NLRA given the “totality of the circumstances.”
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ü Does the post really justify
discipline/termination, or
should it simply be ignored?
Oftentimes, growing a thicker skin and letting some negative or disparaging social
media posts go is the best course. Other times, action is warranted, but it’s a good
idea to step back and look at the larger context of the situation before acting.
Ultimately, though, when faced with a termination or discipline decision, in addition to
determining whether the post is legally protected, another question you should ask is
much more practical:
13

Question Two:
Can I monitor an employee’s social media
and other online activity?

Monitoring Employee Social Media
At some point you may be faced with a situation where you have reason to believe
one of your employees is violating your organization’s social media policy.
Perhaps a coworker reports that an employee is posting disparaging comments
about a client, a patient, or another coworker on Facebook or Twitter.
In order to investigate, you may want
to monitor the employee’s social
media activity or other online activity.
Before engaging in such monitoring,
however, you need to ensure that the
monitoring will not violate any state or
federal privacy laws.
Here are a few points to consider:

1. Is the information publicly available?
Can you gather the evidence you need for your investigation through
public sources?
ü If the employee has no privacy settings in place on his or her social media accounts and
the posts are available to the “world” then that information is probably fair game.
ü Likewise, in most cases, if a coworker voluntarily, on his or her own initiative, provides a
copy of an employee’s post to management, that post likely will not be considered
private. Nor is a post read by a supervisor, where the employee previously “friended” the
supervisor (a situation, however, that supervisors should attempt to avoid in the first place).
In contrast, if you have to use the employee’s password to obtain the information, or if
you have to use subterfuge or coercion to gain access to the post, that is not “fair game”
and you should not engage in such activity. (In fact, in many states it is against the law
to require that an employee or job applicant provide an employer with their social media
login information.)

2. What does your organization’s social media or electronic
use policy say?
Consider what steps you can take to make sure the monitoring is reasonable and
focused as narrowly as possible to get you the information you need but not
extraneous – and possibly protected – information.
Social media posts often contain a mixture of personal and professional
information, so the more often you can filter out non-relevant personal information,
the better.
ü Is the employee on notice that he or she can
be monitored, or does the employee have an
expectation of privacy?
ü If you are relying on a generic electronic
monitoring policy, has it been updated to
reflect that electronic monitoring includes
monitoring of social media activity?
17

3. Seek legal counsel.
Employee privacy rights and
monitoring laws vary a great
deal from state to state (not to
mention from country to
country). Investing in legal
assistance on the front end
can help you avoid greater
pain and liability down the road.

Question Three:
When my employees use social media for work,
who owns the accounts?

As with many questions in this
area, the answer may depend
on policies established at the
outset of the employment.
Prosecutors can subpoena Facebook
logs, and Tweets may constitute free
speech, but when an employee uses
social media as part of their job,
who owns the account?

The dispute, PhoneDog Media v. Kravitz arose from Noah
Kravitz’s Twitter account, “PhoneDog_Noah,” which Kravitz
created while employed at PhoneDog. He used the account
to promote PhoneDog’s services and eventually amassed
17,000 followers.
PhoneDog Media v. Kravitz
When Kravitz left the company, PhoneDog asked him
to stop using the Twitter account. Kravitz responded by
simply changing his handle to “noahkravitz,” and he
attempted to keep the account and its followers.
PhoneDog sued, but the case ultimately settled, so we don’t have a court
opinion deciding who owned the account or followers. Nevertheless, this case
shows that lack of clarity on who owns a social media account can lead to
costly litigation.
21

Eagle v. Morgan provides a clearer example
of what can happen when a company fails to
create social media ownership policies.
In that case, Linda Eagle, an executive at
Edcomm, claimed that Edcomm wrongfully
took over her LinkedIn account when she was
terminated.
Edcomm used her username and password to
replace her picture with that of another
employee, but left Eagle’s honors, awards,
recommendations and connections in place.
Eagle v. Morgan
22

She also admitted that another
Edcomm employee assisted Eagle
in maintaining her LinkedIn
account and that employee had
access to Dr. Eagle’s password.
Edcomm, meanwhile, argued that it owned any LinkedIn account created with
an Edcomm email address. The company said it urged its employees to create
LinkedIn profiles with Edcomm templates and Edcomm email addresses.
Eagle admitted that she created and used her account to promote Edcomm’s
banking education services; foster her reputation as a businesswoman;
reconnect with family, friends, and
colleagues; and build social
and professional relationships.
23

The court noted that Edcomm did
not have a policy informing the
employees that their LinkedIn
accounts were the property of the
employer, and that it was
questionable whether such a policy
would have been enforceable
because it contravenes LinkedIn’s
“User Agreement,” which states
that the account belongs to the
individual.
The court ultimately ruled for Eagle.
24

With these cases in mind, what
can you do to make sure you do
not end up in a dispute with a
departing employee over who
owns a social media account they
controlled or operated during their
employment?
1. Address ownership up front.
Ensure that you have defined (via agreements or policies) that the company
not only has the right to access the site, but also owns the site and all site
content. Do not wait until the employee departs the company.
25

Many lawsuits arise because
employees leave and convert the
sites for personal use, refusing to
return the site or administrative
access to the site.
As with many things, taking the time up front to make sure
everyone is on the same page about who owns a work-related
social media site is well worth the investment.
2. Make sure that you have administrative rights and
passwords to all sites designated as “business” sites.
26

Question Four:
How can I use social media
to screen job applicants?

Do you use social media to conduct a social media “reference
check” on your applicants?
If so, you are one of the
91 percent of employers who admit
to using social media to screen
applicants via Facebook, LinkedIn
and Twitter.
But, just because using social
media to screen applicants is
commonly done, it is not as easy
to do well.
In fact, if you are not careful, you may be creating liability under a
number of different state or federal laws.
28

Examples of Creating Liability While Screening Applicants:
• Civil rights laws (e.g., you learn from social media that a candidate is pregnant
and then, when you end up choosing a different candidate, the pregnant
applicant claims the decision not to hire her was discriminatory).
• State “lawful consumable products laws” (e.g., you decide not to hire an
applicant because they have numerous Facebook posts showing themselves
drinking alcohol – and they are over age 21).
• Fair Credit Reporting Act (and state equivalents) (e.g., you pay a third party to
compile the social media background information on an applicant but you do not
obtain the applicant’s consent or meet the other requirements of the Fair Credit
Reporting Act).
• State social media password legislation (e.g., you require that all applicants
provide their Facebook login information – including their passwords – so you
can see an “uncensored” view of their Facebook activity).

Who is doing the screening?
Are you doing the social media
screening in-house or are you hiring a
third party? If you are doing the
screening in-house, can you have the
screening completed by a non-decision
maker and can you train the screener to
filter out protected class information?
How can you avoid these problems? We recommend a thoughtful and
consistent social media screening strategy that addresses:
This is harder than it sounds but can provide a good defense to potential
discrimination claims. If you hire a third party, ensure Fair Credit
Reporting Act compliance. This includes obtaining appropriate consent from
applicants and providing required notices to applicants when not chosen for a
position because of something that third party reports back to you.
30

What are you looking for?
Look for both positive and negative
information. More importantly, you should
ensure there is some job-related reason for
looking for the information. Look for the
same types of information for all applicants
– be consistent.
Where/how are you searching?
What sites are you going to search? For example, do you really have a need
to see an applicant’s Facebook page – even if the applicant’s privacy settings
are “public” – or can you limit your searching to LinkedIn? What are your
search strategies and search terms? Refine those search terms to pick up
job-related criteria and avoid other personal information that might not relate
in any way to the position you are filling. Use the same process for all
applicants. Again, be consistent.
31

When are you searching?
Are you conducting the social
media screen after receiving an
application or resume? After an
interview? After a conditional job
offer? The later in the process, the
less likely you’ll learn protected
class information for individuals
who do not end up “making the
cut.”
As with many things in life, with social media screening – an “ounce of
prevention is worth a pound of cure.” Taking the time to be thoughtful
about how the screening process will work will go a long way in
limiting any potential legal liability.
32

Question Five:
How can we protect the online image
of our organization?

We have all read, relied upon or at least considered online reviews
… you know, the ratings, stars or “opinions” that represent a
person’s experience with a product or service.
ü Consumers frequently use these reviews to evaluate which
product, store or organization to use.
ü Job applicants also use review sites in evaluating employment
opportunities.
Many times the online review process will actually help, not
harm, employers. At other times, unfortunately, employers will be
faced with negative online reviews.

Let’s take a hypothetical.
A former employee anonymously posts false and misleading information about
one of your managers on Angie’s List. The posts relate to allegedly disrespectful
treatment of employees, poor customer care and faulty product features.
You investigate and confirm
that these statements are
not true – but what are
your options?
You certainly have the right to
respond to any negative online
post. For example, Glassdoor.com
provides companies the opportunity
to post “their side of the story.”

Before you decide to react to a bad online review, we recommend that you
step back and think about the following:
• Does the post contain sensitive, confidential information? If the answer
is yes, then seek legal counsel as you may have a legal obligation to take
action (not just to respond to the negative review).
• Is the post believable – that is, will it really hurt your organization? And
does the post violate any laws? Many sites will not take down posts unless
you can show that there is a violation of law (i.e. release of HIPAA-protected
information), or the posts are threatening (think violent) to a particular person
or entity, or the like.
• Does the post rise to the level of defamation? If the posts are clearly
false statements of fact (not opinion) and are likely to harm your business
reputation, then seek legal counsel – but remember, defamation claims can
be long fought battles and often hard to win.

For example, in Carlotti v. Petta, an Arizona cosmetic surgeon won a $12
million online defamation suit against a former disgruntled patient.
The disgruntled patient had created her own website and claimed Dr. Carlotti
was not board-certified and under state investigation. The patient also obtained
the telephone numbers for the doctor’s patients, called them, and asserted the
same allegations.
Records, however, revealed that Dr. Carlotti
had received no disciplinary action and was
certified by the American Board of Oral and
Maxillofacial Surgery.
Yet, despite his victory, as a result of the
three year legal battle, Dr. Albert Carlotti
suffered deteriorating health, lost hundreds
of patients from his practice, and was
forced to sell his home.

If a legal battle is not a great option, what else
can employers do?
1. Ignore the Post
If the post does not reveal confidential information, does not implicate any
laws and is not violent/threatening or extremely harmful, you may want to
stop and consider whether any response at all is warranted. Sometimes
simply ignoring the post is the better course of action so as not to
escalate the situation or draw greater attention to it.
2. Write a Neutral Response
If ignoring the post altogether seems like a bad idea – and you feel you have
a good story to tell – then consider writing a neutral, objective response.
While this might prompt your anonymous poster to rage on, it also might
help to even the playing field and show the reading public that the poster’s
statements may not be legitimate.

3. Maintain a Positive Online Image Using Social Media
Consider options for increasing your organization’s positive online image. For
example, create (and maintain) a Google Plus Account and write about all of
the great things your organization does.
Maintain a Facebook or LinkedIn
page for the organization,
providing useful information
about your company, its
accomplishments, community
involvement, and areas of
expertise.
This approach can help leave
the online public with a favorable
impression of your organization
while minimizing the impact of the
occasional negative review.

How We Can Help
Fredrikson & Byron provides a variety of social media
legal services – available on a flat fee or hourly basis –
including:
• Employee and manager training on social
media “do’s and don’ts”
• Social media policies and guidelines
customized to your organization
• Consulting on proactive social media
strategies and goals.
40

Author Contact Information
Teresa Thompson
612.492.7347
tthompson@fredlaw.com
Norah Olson Bluvshtein
612.492.7299
nolsonbluvshtein@fredlaw.com
41

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