DECEMBER 2012 NEWSLETTER

AN EMPLOYER’S OWNERSHIP AND CONTROL OF ITS EMPLOYEE’S SOCIAL MEDIA USAGE

Social Media usage has become increasingly popular among Americans, with many people utilizing social medial websites, such as, Facebook, Twitter, LinkedIn and YouTube. However, an employee’s use of social media can intertwine his/her personal life with his/her business life and creates a need for employers to create and implement proper guidelines and policies to clearly establish the boundaries of how an employee’s social media usage can intertwine with his/her responsibilities as an employee.

A major growing concern is when an employee uses social media to promote an employer. A legal issue arises of whom retains the rights to the social media account once the employment relationship is terminated. Recently in Eagle v. Morgan, et. al, 2012 U.S. Dist LEXIS 143614 (E.D.Pa. 2012) the United States District Court for the Eastern District of Pennsylvania considered this very question. In Eagle, the employee, Dr. Linda Eagle, the president of the employer, created a LinkedIn account and used the account to promote her employer and to establish both social and professional relationships. The employer had a policy which encouraged its employees to create LinkedIn accounts and use them to promote the employer. The employer’s policy also allowed for the employer to own the employees’ accounts after their employment relationship had ended, so long as the employer did not use the account to steal the employees’ identities.

After Dr. Eagle was terminated by her employer she was unable to access her LinkedIn 3 account. Thereafter, her employer altered her LinkedIn profile to reflect the name and photograph of Ms. Eagle’s replacement. The Court held that the employer’s actions did not violate federal statues, and found it important that the LinkedIn account was created to promote the employer, and that Dr. Eagle allowed another employee to access and maintain the account. However, cases like this are often fact specific, therefore, when accounts are created to promote an employer it is important that the employer’s social media policies accurately reflect that the employer can maintain ownership of the account.

Additionally to ownership questions, another concern of an employees’ social media usage is how an employee’s usage of social media could negatively affect his/her employer. For example, in a recent Public Editor’s Journal post by New York Times public editor Margaret Sullivan, the Times addressed that one of their reporter’s Twitter feeds led to problematic results. The reporter, Jodi Rudoren, the Times bureau chief in Israel, posted Twitter and Facebook messages related to the recent events in the Gaza conflict that many people interpreted as being insensitive and biased. As a result, the Times has now assigned an editor to work with Ms. Rudoren on any social media posts and messages. This highlights how an employee’s use of social media can reflect poorly on an employer and sometimes the situation calls for monitoring of social media.

Even if the employee is someone less public than a Times reporter his/her use of social media can still negatively impact the employer. Consider the recent plight Lindsey Stone, a former employee of LIFE, a non-profit organization which serves the disabled. On a business trip Ms. Stone had a fellow employee take a picture of her that she later posted to her personal Facebook page. The picture was taken at Arlington National Cemetery and depicted Ms. Stone yelling and making an offensive gesture in jest. Ms. Stone’s picture began to generate negative comments that Ms. Stone was disrespecting our nation’s veterans. Eventually a Facebook page with approximately 30,000 members was created demanding that LIFE fire Ms. Stone as a result of the picture. LIFE issued a statement that the picture in no way reflected the organization’s values. LIFE then placed both Ms. Stone and the employee who took the photograph on unpaid leave while they investigated the matter. A few days later, LIFE announced that it had terminated both Ms. Stone and the employee who took the photograph. This demonstrates how even a personal page with a personal post can lead to negative press for employers.

While employers should draft policies addressing issues related to both ownership of accounts used to promote the employer and the employees’ usage of personal social media accounts, such policies must be narrowly drafted. The National Labor Relations Board (“NLRB”) recently issued a memorandum dated May 30, 2012 addressing the need for employers to narrowly tailor such policies. The memorandum was a report of the NLRB’s general counsel, which cautioned that employees increased usage of social media has caused employers to draft and/or revise their social media policies, however, if the policies are overboard they can be found unlawful under the National Labor Relations Act (“NLRA”).

The NLRA protects employee’s rights, whether unionized or not, to discuss the terms and conditions of their employment, their employer’s labor policies and treatment of their employees among other protections. Therefore, placing a complete ban disallowing employees to discuss their employment on social media is unlawful pursuant to the NLRA. For example, an employer cannot state in its policy that its employee’s post must be “completely accurate and not 4 misleading and that they do not reveal non-public information on any public site.” The NLRB found this language to be an unlawful restriction on the employee’s rights under the NLRA. In contrast, the NLRB’s memorandum states acceptable language to use in a social media policy would be as follows:

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly…Never post any information or rumors that you know to be false about the [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Drafting a social media policy is necessary for employers to protect their ownership rights of promotion profiles, but also to encourage employees to responsibly use their personal profiles in relation to the employer. However, employers must be cautious and only draft lawful provisions which do not restrict an employee’s rights under the NLRA. Please contact the offices of Pozzuolo Rodden, P.C. if you are interested in drafting such a social media policy for your company.