Legal blog JD Supra posted a great article, “Employers Can Discipline Employees For Certain Social Media Activity” by Beth P. Zoller recently regarding Social Media Policies. We often remind our clients that doing business in the Social Media Era requires considering how employees may use various social media outlets in relation to their work. This includes — but certainly is not limited to — posting images taken on the job to Facebook or Instragram, commenting or ranting about the Employer’s practices or business online, engaging in harassment of other employees on Facebook or Twitter, mocking customers online, and sharing confidential information in a status update.
Recently Wal-Mart was found to have properly enforced their Social Media Policy after firing a Manager who publicly chastised subordinates via Facebook rather than initiating the proper process for addressing employee concerns. Rodriquez v. Wal-Mart, +2013 U.S. Dist. Lexis 3025 (N.D. Tex. 2013). Wal-Mart’s social media policy had been put in place to avoid public comments that adversely affect employees or job performance, and it directed employees to resolve work-related complaints by speaking directly with co-workers or by utilizing the company’s open door policy, rather than by posting comments to social media. The policy further instructed employees that if they chose to post complaints or criticisms on social media, they should avoid doing so in a way that is “unprofessional, insulting, embarrassing, untrue, [or] harmful.” The Manager failed to follow the provided steps, and in light of other concerns and the policy, she was properly terminated.
The Rodriquez case demonstrates that Wal-Mart had a legitimate interest in encouraging employees to resolve complaints pursuant to the company policies, rather than in a public forum such as Facebook.
We’ve included the list of “take away” information that the JD Supra article provided:
1. Clearly convey that as the employer you have a legitimate business objectives in implementing the social media policy;
2. Instruct employees that they should refrain from engaging in inappropriate or unacceptable conduct and clearly define those terms;
3. Remind employees that social media postings are public and generally available for all the world to see;
4. Specify that harassing, discriminatory, obscene, pornographic and malicious conduct on social media is not acceptable;
5. Assure employees that the intent of the social media policy is not to infringe upon employees’ Section 7 NLRA right to engage in protected activity and collective action related to their wages, hours and working conditions.
6. Ask that employees include a disclaimer that an employee’s views, positions and opinions expressed on social media are those of the employee and not the employer;
7. Prohibit employees from divulging the employer’s confidential information and trade secrets and require compliance with nondisclosure and confidentiality obligations. Define what is meant byconfidential information and trade secrets;
8. Advise employees to use their best judgment and exercise personal responsibility when posting on social media; and
9. Require employees to obtain authorization before posting a message that is either in the employer’s name or may be attributed to the employer or before speaking to the media on the employer’s behalf.