Social Media & the Workplace
What Do Employers Need to Do to Protect Confidential
Information, Prevent Employee Harassment and Obey the
Changing Law on Employee Use of Social Media?
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Lawrence
Donoghue:
Lawrence has been counseling and representing
employers and executives on employment and labor law
matters for over thirty years. He is a frequent speaker on
these topics to business groups and has been featured on
television and in newspapers.
Phone: 847-509-9177
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Email: Ldonoghue@ldonoghuelaw.com

Website: www.ldonoghuelaw.com
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Social Media and Employment Law
Why Should Employers Be
Concerned?

In preparation for a recent speech to a group of
health care professionals, I reviewed a talk I
gave to the same group five years before. One
of the topics was use of computers by
employees.

There was no mention in the first speech of
Twitter, Google, Facebook or LinkedIn. To the
extent they existed then, they were not an area
of any concern since the use of and access to
such “social media” were limited.
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Social Media and Employment Law
Why Should Employers Be
Concerned?

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As more workers use computers, smart phones and notebooks
and as these items are increasingly integrated with the employee’s
job duties, the opportunities for mischief or outright malicious harm
are everywhere. Unfortunately, the employer is often the one who
is hurt or sued what that happens.
Examples:
 An employee (Brett Favre) sends sexually explicit pictures
repeatedly to a co-worker via a cell phone. Co-worker files
lawsuit.
 Sales employee for a luxury car dealership posts comments on
his Facebook page ridiculing his employer for giving away hot
dogs to customers in a promotional event. Customers see
these comments, employer fires employee and he files a claim
with the federal government (NLRB) which the company must
now defend. (Knauz Motors in Illinois)
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Use of Social Media by
Employees. The Four Areas of
Concern for Employers

This is not legal advice. Every situation needs to be
evaluated in light of the facts and the law. Further, this is an
area of constant legal flux and can be a minefield for the
unwary. Nevertheless, here are the four areas I will address
today.
1.
Using information from social media in hiring employees.
Preventing harassing activities by employees through electronic
means.
Disciplining employees who use social media to discuss the terms
and conditions of employment or who post derogatory information
about the business, its owners or managers.
Protecting the company’s trade secrets and confidential information
both during and after the employment relationship.
2.
3.
4.
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Using Social Media Information in
the Employee Selection Process

As a general rule, employers may use any information
obtained legally in the hiring decision, provided that the
effect of the selection criteria doesn’t discriminate against
a protected group.

Employers can look at social media postings for the
applicant since they were put there by the applicant and
are clearly intended to be in the “public domain.” Postings
by friends, comments or information from sources other
than the applicant should only be considered in limited
circumstances or not at all.
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Using Social Media Information in
the Employee Selection Process

Limit your use of the acquired data to those parts that
concern the applicant’s qualifications and truthfulness.
This is not easy to do considering the volume of
information posted by some people, but look for the
following:


Did the applicant misrepresent herself during the hiring
process? Does she have a criminal background she failed to
tell you about? Did the applicant lie about educational
attainment or degrees? Was he not forthcoming about his
current job or work status? What about job title?
Ignore those portions that relate to marital status, sexual
orientation, religion, political affiliations or community
activities. If you would not seek the information on an
application you may not consider it just because it came from
another source.
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Using Social Media Information in
the Employee Selection Process
The information you find should only be used as part of
the overall hiring decision and not as the determining
factor. If you want to contact the applicant to get an
explanation of apparent discrepancies then do so. You
can even tell the person the source. No one who posts
personal information on Facebook or LinkedIn can say it
is private and confidential.
This is a new area of the law with very little precedent but
I’m satisfied if you stick with these guidelines you’ll
comply with applicable laws on employee selection.
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What Can an Employer Do to
Prevent Illegal Harassment
through Social Media?

I mentioned earlier the case involving Brett Favre.
There are many other instances of such lewd and
harassing behavior through the use of electronic
media. In Favre’s case, he was a member of the
New York Jets and was sending photographs of his
genitalia by cell phone to a female staff member
apparently in an attempt to induce her to enter into
a sexual relationship. Clearly these actions would
fall within the definition of sexual harassment for
which the employer would be liable.
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What Can an Employer Do to
Prevent Illegal Harassment
through Social Media?

An employer’s obligation is to first and foremost inform ALL employees that sexual
harassment is illegal and intolerable. Define what sexual harassment is and
encourage people who have been harassed to come forward to report any such
behavior.

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If you don’t have a policy on workplace harassment , you must prepare one
immediately. I mean today.
A current policy must be amended to explain to employees that communication
through electronic media is just as intolerable and illegal, even if posted
anonymously.
Be sure to include the following examples of unacceptable behavior:
• Circulating dirty jokes through email.
• Sending lewd photographs a la Favre.
• Posting any sexually related materials on a co-worker’s Facebook or other
account.
• Persistently seeking dates or sexual favors from a co-worker through text
messages or other communication.
The list is endless and is only limited by employees’ imaginations and idle time.
If you have a well drafted policy that all employees are informed of and agree
to, that will serve as the company’s first line of defense should illegal activity
occur.
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What Can an Employer Do to
Prevent Other Illegal Harassment
through Social Media?

Please note that harassing behavior via social
media is not confined to sexual harassment.

If an employee posts jokes, comments or
photographs which are racist, sexist, homophobic or
based on any other protected status, that is equally
illegal and not to be tolerated.

Make sure your policy reflects this. No exceptions.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

For years, the only derogatory remarks employers had
to worry about were anonymous postings on the
bulletin board in the lunchroom.

The bulletin board is now the PC, laptop, Facebook
and cell phone and the lunchroom is the electronic
world. What used to be a minor annoyance has the
potential to mushroom into lawsuits or investigations of
employment practices.

The federal government, notably the National Labor
Relations Board, has taken notice of the increase in
employees’ use of social media and issued several
decisions on the subject, none of which is favorable to
employers.

What can an employer do?
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

Employees do not have an unfettered right to
publish or say anything. Remarks that are
slanderous, libelous or just plain false are not
protected whether they are about the company
or its managers.

Employers may still discipline or discharge
employees who do such things regardless of
the forum for the comments.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

However, employees do have a right under the National Labor
Relations Act (NLRA) to engage in “protected, concerted
activities for the purpose of collective bargaining or for mutual
aid or protection.” This law is enforced by the National Labor
Relations Board and only applies to private employers.
Managers and supervisors are not covered by the NLRA, either.
Government and public employees have their own sets of rules
established by their states. Familiarize yourself with your state
law and be aware that states are likely to base their
interpretation of employee free speech rights on the NLRB’s
position.

Limiting employees or disciplining them for acts considered
“protected, concerted activities” is an unfair labor practice
regardless of whether they are members of a bargaining unit.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

The NLRB has an army of regulators and lawyers
who both investigate and prosecute administratively
any employee claims of unfair labor practices,
including those that allege limitations on protected,
concerted activities.

For years, the NLRB only concerned itself with
employees represented by a labor union as the
NLRA contemplated. The proliferation of speech
issues on social media has drawn the Board into the
fray and they spend a good deal of their time and
money processing unfair labor practice charges
whether employees are unionized or not.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

What does the NLRB mean by protected, concerted
activities? This means actions engaged in by a group of
employees to discuss the terms and conditions of their
employment. An employee acting solely on his behalf or
posting comments on an individual Facebook page does
not qualify. Likewise, comments sent just to nonemployees are not protected. But, if you have a group of
employees who have set up their own web page to
complain about company actions, the comments they
make in that forum are protected and the employees may
not be disciplined for them.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

Employees participating in email discussions
are also protected so long as the discussions
relate to employment.

The terms or conditions of employment which
employees may discuss include pay, benefits,
actions by management, discipline or employee
terminations, union organizing and working
conditions.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

The communication discussing these subjects must be
among employees for the purposes of furthering their rights
and not just a posting by an individual employee on a
website.

Regrettably, several recent decisions by the NLRB have
concluded that sarcastic and disparaging remarks posted
publicly were protected because the gist of the employee’s
statements concerned workplace conditions and
management practices and were shared with co-workers.

As currently comprised, the NLRB is very, very proemployee and quick to find that any limitation of employee
speech is a violation of the NLRA.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

Employers need to have a policy that addresses
employee speech. This is not optional. Do it as soon
as possible. It will protect your business.

From the outset, the employer must advise employees
that it doesn’t intend to limit or coerce them from
engaging in open and honest discussions about
workplace matters among themselves, regardless of
the forum.

Let employees know they can discuss wages, benefits,
working conditions or union organizing without any fear
of discipline by the employer. They can even talk about
how much each other’s salary, performance ratings,
special benefits or disciplinary discussions.
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What Can Employers Do to Limit
Employees’ Comments about the
Company?

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But, employers need to advise employees that their protected,
concerted activities may not interfere with their work duties.
Employees are paid to produce in accordance with the
employer’s directives.
Tell the employees that libelous, slanderous or just plain untrue
remarks intended to ridicule co-workers, managers or
customers do not fall within the definition of protected,
concerted activities. Such acts will be cause for discipline,
including discharge. Make this part of your policy on employee
use of social media and computers.
On a related note, the NLRB has just issued a workplace poster
on this subject that virtually every private employer must display
by April 30, 2012. If you would like a copy please let me know
or you can obtain your own at the NLRB.gov website.
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What about Confidential Information
or Trade Secrets? How Can I Force
Employees to Protect Them?
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The short answer to this question is that in the age of the
Internet, ubiquitous workplace computers, Facebook and
cell phone cameras, it is virtually impossible to prevent an
unhappy but determined employee from stealing or
distributing your trade secrets. Sad but true.
There are, however, steps you can take to protect this
information both during and after the employment
relationship.
The Uniform Trade Secrets Act is applicable throughout
the United States and protects an employer’s “trade
secrets” from dissemination by employees, both during
their employment and indefinitely afterward. Employees
must be informed of this law and how it applies to them.
This cannot be repeated often enough.
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What about Confidential Information
or Trade Secrets? How Can I Force
Employees to Protect Them?

A “trade secret” is not just something an employer
designates as such. It is a tangible asset the employer
purchased or developed that gives it a competitive
advantage in the marketplace and which the employer has
taken steps to maintain as confidential. The formula for
Coca Cola is a trade secret. A list of a company’s customers
distributed to all employees on a web site is not.

One of the ways an employer can “take steps” to maintain
confidentiality is by having ALL employees sign a
comprehensive policy statement in which they acknowledge
their obligations while employed and afterwards.

I suggest doing this annually with every employee and
immediately at time of hiring along with other employment
documents. Every employee must have a signed agreement
in the personnel file. No one is exempt.
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What about Confidential Information
or Trade Secrets? How Can I Force
Employees to Protect Them?
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Any time an employee is terminated, whether for cause,
economic reasons or pursuant to a workforce reduction,
the employer must remind those employees that the
obligation to honor the confidentiality pledge continues
after employment regardless of the reason for separation.
A severance agreement must also contain a pledge from
the former employee that he or she will keep the trade
secrets information secure. Always include this provision
as well as a forfeiture clause in the event an employee on
severance pay breaches it.
Be exceedingly clear to workers that the company will
take all steps necessary to protect its confidential trade
secrets, including filing lawsuits or referring cases for
criminal prosecution.
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What about Confidential Information
or Trade Secrets? How Can I Force
Employees to Protect Them?

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Any such policy or pledge must specify that
the commitment extends for an indefinite
period of time and to all forms of
communication, social media, the Internet,
web sites, and emails.
Also, make the employee agree that he or
she authorizes the company to investigate
any “anonymous” postings and that the
employee will cooperate in that investigation.
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What about Confidential Information
or Trade Secrets? How Can I Force
Employees to Protect Them?

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Warn employees of the legal consequences of
violating the Trade Secrets Act or their pledges to
honor your confidentiality agreement. Be ready to
go to court, if necessary, to enforce the
employer’s rights to maintain the trade secret
from disclosure.
Given the proliferation of means of
communications, there is no perfect legal way to
protect all information. Work closely with your
technical support staff, human resources and
your attorneys to protect your business.
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Questions???
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Contact Information

Lawrence Donoghue

Phone: 847-509-9177
 Email:
Ldonoghue@ldonoghuelaw.com
 Website:
www.ldonoghuelaw.com
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