They Posted What? Protecting Your Company’s Reputation from Rogue Employees’ Social Media Posts

August 14, 2014Articles InsideCounsel

Reprinted with permission from the August 14 issue of Inside Counsel. (c) 2014 InsideCounsel. Further duplication without permission is prohibited. All rights reserved.

Social media can be a powerful marketing tool. It is easy to post information, share photographs, and best of all, encourage a dialogue with customers — all key to developing a customer base invested in the company’s products. It is this same ease and instant access that can also be disastrous to a company’s reputation in the wrong hands.

Take for example Golden Corral, which last year had an employee post photographs of a manager hiding allegedly expired food out by a dumpster during a health inspection, implying that the food was brought back into the restaurant after the inspection was completed. The photographs went viral.

The initial reaction to such posts is to fire the employee in question. However, employers need to think twice before taking any action. Not only can a termination in these circumstances result in negative publicity, but the termination could be unlawful.

In this case, the Florida-based Golden Corral employee posted the video to YouTube and did not report it directly to his employer. Fortunately for the employer, Florida has a whistleblower statute that only applies to public employees. Had the employee been in a state that has a more expansive whistleblowing statute, terminating the employee could be problematic. Yet to be decided in the context of a whistleblowing claim is whether it would be deemed to be “reporting” the activity to the employer if the employee had posted the video on the company’s Facebook page. It is possible that a court might say yes.

Employers need to also be concerned with the National Labor Relations Board’s (NLRB’s) focus on companies’ discipline of employees’ social media posts. Since the above employee was not complaining about unsafe working conditions, it is doubtful that that the employee engaged in concerted activity protected by the National Labor Relations Act (NLRA).

Obviously, it would be better if the above post had never been made, but wishing something had not happened is not a particularly good risk management strategy; companies need to be proactive. Golden Corral could have established a toll-free hotline where employees can report complaints to prevent public disclosures.

A hotline is only effective if the company actually responds to and investigates the complaints. Companies should also make employees aware that they cannot be retaliated against for reporting what they believe to be improper conduct. In order to create a culture where employees feel comfortable bringing issues to management, companies can also consider rewards to employees who provide tips and information.

Dunkin Donuts recently capitalized on a negative post by a customer. The irate customer demanded free food after she did not receive a receipt. The customer filmed the rant and uploaded it to YouTube. Public opinion quickly turned against the customer as she was heard using multiple racist expletives. Dunkin Donuts’ executives immediately tweeted support for the employees who dealt with the woman and later invited them to a corporate event to receive further recognition. In that case, Dunkin Donuts was able to generate positive publicity while showing employees that it cares about the way they are treated.

Establishing a lawful social media policy that very clearly lets employees know what is acceptable and the consequences for posting improper information is another tool for employers. A social media policy needs to take into consideration several laws and legal issues, most notably privacy laws, such as the Stored Communications Act (SCA) and the NLRA. Under the SCA, only the user or an “authorized user” of the electronic information can access it without restrictions. No one else can access the stored information unless the user “voluntarily consents.”

A recent New Jersey case, Ehling v. Monmouth-Ocean Hospital Service Corp., addresses the limits of the SCA. The court first held that non-public posts on a Facebook page are entitled to protection under the Act. The court also held that where a co-employee who was Facebook friends with the plaintiff voluntarily brought the post to management’s attention, there was no violation of the SCA. Employers should exercise caution before coercing employees to give access to private posts. (See Pietrylo v. Hillstone Restaurant Group, finding a violation of the SCA where the employer forced an employee to give it access to another employee’s Facebook page).

The NLRB has taken an aggressive stance on broad policy language that might chill concerted activity. It has gone so far as to hold that where another employee merely “likes” the post, the act of liking the post may be protected concerted activity. It remains to be seen what impact the recent Noel Canning decision will have on any NLRB decisions affecting social media policies, but employers should still be careful in addressing problem posts and in crafting policies to prevent such posts.

A good policy should:
1. Advise that social media may be monitored so that employees cannot claim that they had a reasonable expectation of privacy in the posts.
2. Address posts made using company equipment. Companies can restrict employees from posting, even on private social media accounts, while using company equipment. Companies may not want to ban all use of company equipment, especially if they want to encourage employees to make positive posts to the company’s sites.
3. Clearly define confidential information that must not be disclosed. Itemizing the confidential information rather than simply broadly stating that employees may not discuss “company business” is more likely to be upheld as a legitimate policy by the NLRB.
4. Encourage employees to report posts that they find offensive or discriminatory and advise employees that all such complaints will be investigated.
5. Clearly define and prohibit the use of bullying, threatening or discriminatory comments against employees or customers.
6. Bar employees from engaging in illegal activity online.
7. Prohibit employees from defaming or disparaging customers.

Even with a well-thought out and well-publicized plan, employees may still violate the policy. However, it is easier to discipline an employee, and hopefully deter other employees from engaging in similar conduct, where there is a clearly communicated policy to enforce. Employers should contact experienced labor and employment counsel before implementing a social media policy and periodically review such policy so as to minimize the possibility of it being found unlawful.

Reprinted with permission from the August 14 issue of Inside Counsel. (c) 2014 InsideCounsel. Further duplication without permission is prohibited. All rights reserved.