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Employers on uncertain ground over workers' 'protected' use of social media
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The recent suspension of three U.S. Steel employees for posting pictures from the company's Clairton coke plant on Facebook highlights a growing issue for employers: regulating the online conduct of their workers.
Employers are grappling with how to preserve their reputations and proprietary information on Facebook, Twitter and similar sites without violating the rights of their employees. Drawing that line can be difficult.
"Social media is something that employers are starting to get a real sense of urgency about," said Jennifer Ellis, an attorney with Freedman Consulting, a Lansdale, Pa., firm that counsels law firms.
The U.S. Steel workers were suspended five days without pay for violating a long-standing policy prohibiting the unauthorized use of cameras in company facilities, said Bob Prah. He is president of United Steelworkers Local 1557, which represents Clairton's union workers.
Mr. Prah said the pictures were taken with cell phones. They portrayed a hard hat, a coke battery, an employee preparing to push coke (baked coal used to make iron), a mug shot of a worker in an office and a worker decked out in his gear standing on top of a coke battery.
He characterized the incidents as "a seemingly innocent indiscretion."
U.S. Steel spokeswoman Erin DiPietro declined to comment except to say that photography of any kind on company property "is prohibited unless proper permission is obtained."
In August, the National Labor Relations Board issued a report on rulings that the federal agency made in 14 social media cases considered within the last year. The issue in all the cases was whether the conduct in question involved "concerted, protected activity" allowed by federal law.
Generally, that means workers can use social media to discuss wages, hours and other conditions of employment. Employers stand on firmer ground when disciplining a worker who gripes online about his or her personal grievance.
In one case, the NLRB ruled a car salesperson could not be fired for posting critical comments on Facebook about the dealership's choice of food at an event introducing a new model. That was concerted, protected activity because other sales personnel made similar comments about the food to the dealership's general manager and the employees discussed the matter among themselves, the NLRB ruled.
But the agency ruled a newspaper reporter who tweeted criticism of copy editors could be fired because his online comments were not related to his conditions of employment and he did not involve co-workers in discussing work-related issues.
Although the NLRB report describes a number of scenarios regarding what employees can and cannot do, experts still aren't sure.
"It is confusing, not only because it is so new and so sudden, but because so much is changing day to day, week to week," said Michael Schmidt, an attorney with Cozen O'Connor, a New York City law firm.
Ms. Ellis acknowledges that when it comes to employee activity, in general, "if it's OK offline, it's OK online." She said the complication comes from the fact that social media is a much bigger forum. Whereas in the past, a worker with a problem might make a telephone call to commiserate with a co-worker, he now can post his problem on Facebook.
"Social media is definitely not private. It's by nature not private," Ms. Ellis said. "The ramifications of it online are much greater, and people need to understand it."
Last week, Mr. Schmidt posted an item on his social media employment law blog about a federal appeals court ruling in favor of a female employee fired for taking pictures at the long-term care facility where she worked. Her employer banned the use of cell phones as cameras, a policy that came into question after the worker got a bad haircut.
She wore a hat to cover up the damage and was told the hat violated the company's dress code. She took pictures of other employees who were violating the dress code and were not being punished.
After the company fired her for taking the pictures, the woman took her case to the NLRB and won. The decision was affirmed by the appeals court.
Mr. Schmidt said the lesson is that blanket policies may run afoul of the law in some circumstances.
"As critical as it is to create and communicate effective social media policies in the workplace, you have to make sure they are not too broad," he said. "[Employers] need to understand that there are protections in place for employees."
First Published November 8, 2011 12:00 am
