Facebook and LinkedIn Decisions Help Shape Social Media Policies

Many companies presently are wrestling with drafting a sound and defensible social media policy.  Some recent decisions may provide some much needed guidance on what to include and what to avoid.

The National Labor Relations Board has issued several recent decisions concerning the scope of what is permitted in social media policies for employees protected by the Wagner Act. The most recent case concerned whether an employee could be terminated for Facebook postings that mocked the employer. The company’s policy provided that: (a) “[a] bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and (b) “Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees [and] [n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraph (c) prohibited employees from participating in interviews and (d) required inquiries concerning employees be directed to human resources.  The NLRB administrative judge found that paragraphs (b), (c) and (d) were unlawful as an improper infringement on the employee’s right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The judge held that paragraph (a) was permissible.  The judge found that the discharge was legal as the communications did not concern the conditions of his employment.

In the UK, the High Court ordered a former employee to hand over business contacts built up on his LinkedIn personal page. The former employee allegedly used LinkedIn to approach clients for his own rival agency established three weeks before resigning.  The company allegedly encouraged the employee’s use of LinkedIn and that once the employee’s contacts accepted his invitation to join his network the contacts ceased to be confidential.  The Court ordered the employee to disclose his LinkedIn business contacts and all emails sent to or received by his LinkedIn account from the employer’s computer network.  The Order also required the employee to produce all documents, including invoices and emails, that showed any use by him of the LinkedIn contacts and any business obtained from them. Learn more about this case here.

As I have said previously, the starting point is a clear and detailed policy that informs employees that they have no expectation of privacy and of future expectations about ownership and rights.  City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010) (“And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”)  The lines of permitted use and company access to data and information stored, accessed or transmitted (whether for business or personal use) should be detailed and complete.  Absent such detail, the company risks a finding that the employee had a reasonable expectation of privacy as to the personal data stored on the company computer or system.  Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (2010). As the above cases demonstrate, care must be taken in making sure that the right details are covered, but in a manner that does not undermine the enforceability of the provisions.

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Ron Raether |