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Can They Fire You for Putting That On Facebook?: A Guide to Lawful Social Media Policies and Practices

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Can They Fire You for Putting That On Facebook?: A Guide to Lawful Social Media Policies and Practices

Employers and employees alike must be mindful of how on-duty and off-duty use of social media can have consequences in the workplace. Employers must also take care to craft social media use policies that do not violate the legal rights of their employees. This fast-paced class covers recent examples of what happens when employers act against employees based on social media posts and what happens when social media policies are not legally compliant. Lawyers will be prepared to advise clients on legally sound social media use policies and practices.


Diane Seltzer
Seltzer Law Firm


Diane Seltzer - [Diane] Hello, my name is Diane Seltzer and I am an employment lawyer who practices in Washington, D.C. and in Maryland. For about 30 years, I have focused my practice on employment law issues and a hot topic that we'll discuss today involves social media usage and social media policies by employees. Now, as someone who focuses her practice exclusively on employment law, you can imagine I have seen a number of cases involving people who get into trouble or lose their jobs, or on the other hand, want to fire someone or want to get someone in trouble based on social media posts. 
So today in our CLE we're going to talk about what's lawful? Can someone be fired for what they post on Facebook or tweet or put on Instagram? There is a large body of law that addresses these concerns and to which you should look for guidance if you are ever in this situation where you have to decide whether you can take disciplinary action against an employee based on a social media post. Or if you are an employee against whom this kind of action's being taken. Or of course, if you're an attorney representing either one of those types of parties. 
Our first slide involves what laws are at issue. And there, like I said are many. The first amendment free speech right for government employers is a big issue and often is mistakenly applied in the private sector. So again, we will typically only look at first amendment free speech rights in the context of government employees. Unless of course the state has some kind of law making the federal or state constitution applicable somehow either by policy or analogy in the private sector. We have state constitutions and state laws. The National Labor Relations Act is something we need to look at. And that does apply in unionized and non-unionized workplaces. There's a misconception that this law only applies in the unionized workforce and that's just not true. There are a number of laws that address off duty conduct, including off duty conduct to include political activity or political affiliation or use of marijuana, for example. 
So there will be state statutes that address off-duty conduct. There will be privacy and defamation related towards that, we have to think about. Discrimination laws, the Family Medical Leave Act. Remember think about people who post pictures, that they are skiing while they are allegedly unable to walk and therefore on FMLA leave, but more on that later. Unemployment insurance laws are at issue and workers' compensation laws are at issue. And finally there are State laws that protect social media, privacy, including password privacy. There are going to be statutes in your materials that you can check into to see whether your state actually has a law that says an employer, for example, cannot ask an employee for their social media passwords or for access to their social media accounts. So, one thing you have to wonder as you enter into this area is, what's generally okay to post? Because this is really like walking on landmines in a sense. This is all relatively new from a legal perspective. Social media has not been around forever and ever, even though it feels like it, and it's hard to remember a time when it wasn't an influence in our personal and professional lives. But the law is evolving and we need to a little bit, we're building the airplane as we fly it to some extent. 
But some things have emerged from the case law that has been developed since social media has been an issue. And what we're learning is that what's generally okay to post would include, truthful statements about workplace conditions, truthful statements about the terms and conditions of one's employment. Comments that are supportive of the union of unionization, of joining the union and that kind of thing. Comments supporting other employees who are opposing violations of EEO laws or pictures of an employee who's engaged in lawful off duty conduct in states where such conduct is protected by statute. Now we will of course, as this course goes on get into, well, how do I know that it's generally okay to post these kinds of things. And we will talk about the body of law that's evolved that gives us confidence, that these things are okay and perfectly lawful. Similarly, we'll talk about, what's generally not okay to post and why we believe so. You know these are legal decisions that we'll be making, but you also have to keep in mind whenever you represent a business or work for one, the businesses also do things for business reasons that are not purely legal. Sometimes it's to please stakeholders, sometimes it's because the optics of doing something that perhaps lawful or legal, but just is doesn't feel right, doesn't look good. Those are the kinds of things. And an example of that could be paying a worker minimum wage. No you can, it's lawful, but is that the brand that you want for your organization or do you wanna do better? So social media policies and taking action against employees just because you can, is not only the only thing we think about when we're making these decisions and particularly here in the context of what is okay to post on social media when you work for another company.
 So what's generally not okay to post? The answer to that, the short answer is basically any conduct or statement that would lead to disciplinary action or termination, regardless of whether the post existed on social media. And what do I mean by that? Well, if you knew me you'd know, I'm an extremely practical attorney. And I like to just get to the point. So not that there's not lots of philosophy and you know, philosophical discussions we could have about whether you can do something or whether you can't or whether you should or shouldn't, and those are necessary interesting discussions to have. I think what's important to remember when we're talking about social media is, social media becomes the vehicle of proving. something happened if you will. There's evidence, there's a digital footprint of whatever was said or done. So it's not always the post itself Let me rephrase that a better way to put this is, it's a matter of would the conduct or whatever is depicted in the post, be okay or not okay regardless of whether it was on social media. So social media doesn't make something wrong, okay? It doesn't make something right, automatically wrong. It's just a way of proving something happened. So I usually tell my clients who have questions, you know, can we prohibit them from posting this or depicting this? I say, if it's something that you would terminate them for or discipline them for, regardless of whether social media was involved, then it's okay to ban it on social media. 
But again, these are generalities. Sometimes State laws protect certain conduct, typically not unlawful conduct, so that's something to keep in mind. And you know, I don't wanna make a blanket rule without understanding on a case by case and state by state and company by company basis, why there is the interest in taking action based on someone's social media posts. You know, the line call here is when something shows poor judgment, for example, someone who is you know, legally allowed to drink, posting a picture of themselves on social media, very intoxicated. It's not unlawful, they're not driving, they're not hurting anyone, but the employer sees something like that. And they say, you know, if we didn't know about it, I mean, and it didn't have any effect on their ability to do their work. And they didn't commit a crime drink and drive et cetera. You know, we wouldn't care, but now we know, and the employee's bad judgment in putting this on social media for all to see is the concern, not the underlying action. So some of these become really interesting in that regard. And I want you to keep your mind on the difference between the action or the words used in the post versus the poor judgment that may have been used in making the post. 
So what are some of these things that are not typically okay to post? Posts that reveal confidential or proprietary information of the employer. Posts that show the employee lied about the need for time off. Posts that demonstrate the employee has been untruthful about work related matters. Posts that show lawful off duty conduct that suggest poor judgment or dishonesty. Posts that demonstrate the employee's unlawful or criminal conduct. Posts that express disloyalty or negativity towards the employer or its clients. Posts that are threatening or intimidating, discriminatory, harassing, or retaliatory. Posts that are obscene. Posts that violate another employee's privacy or posts that depict support or encourage violence. Those are generally not okay to post. 
Now a quick word for people who are listening, who have government employer, clients, or who employ government employees. There's a first amendment analysis that you have to look at when you're making a decision about whether to take action against an employee based on their social media post. There's a first amendment retaliation claim potential and courts look at four questions in deciding whether an employee might be whether their first amendment rights might be being violated. One, whether the employee is a citizen whose speech implicated a matter of public concern and not merely internal matters. Two, whether a balance of the interests favors regulating the speech to promote the efficiency of public service, and that's the Pickering case. That's the Pickering balance. Three, whether the protected speech was a substantial or motivating factor in the termination. And four, whether the state would have taken the adverse action in the absence of the protected speech. Now to develop that a bit more, the Pickering versus Board of Education case from the Supreme Court is the one that set the standard. And under Pickering, if the employee is speaking on a matter of public concern, an employer has to use the balancing test to determine if first amendment rights outweigh the employer's rights. The next Supreme court that goes into this standard is Connick versus Myers. And under that case, we have to look at whether, well the issue is, whether an employee's speech addresses a matter of public policy has to be determined by content form and context of a given statement as revealed by the whole record. The third case we look at is Garcetti or Garcetti versus Ceballos. When public employees make statements pertinent to their official duties, they are not speaking as citizens for first amendment purposes. 
So keep in mind again, if you are dealing with government employees that where the employer, the government, has a legitimate interest in efficiency and preventing disruption, the balance will waive in favor of the government and an employee may be disciplined for their exercise of their first amendment rights. That's a nuanced and complex area of law. We don't have time in one hour to carry, to cover all of the cases that deal with first amendment issues and social media posts. And again, remember we learn from just straight first amendment cases because social media is typically the mechanism of proof, but it's not what makes the difference in whether something's okay or not. You know, if it's not okay off social media, it's not okay on social media. We can certainly use that as a good rule of thumb. But I would urge you, if you do have a situation where you don't know, if action can be taken against a government employee, do the research, you have the trilogy that sets the standard for first amendment rights and speech in the workplace and discipline based on speech outside of the workplace I should say, or just any exercise of first amendment rights. So when you do a legal research search for cases, you will not be disappointed. I could spend 10 hours just doing first amendment issues in the social media context, but of course we don't have 10 hours. And it would mean that I'm not getting to all the other things I need to get to in the hour that we do have. So again, I would urge you to research your particular fact pattern and chances are something like it has come up in the federal sector by now. And you can look to that case for analogy, or of course if you wanna distinguish it, you can always do that too. 
The next set of laws that I wanna talk about involve the national Labor Relations Act and protected concerted activity. So as I said earlier, this law applies in the non-unionized workforce as well. You can't fast forward past this part of the presentation because you don't represent, you know, unionized workforces. So section seven of the NLRA, guarantees employees the right to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection. Of course we will break down those definitions in a moment. But this is protected activity. And the reason we care about it is if someone is engaging in concerted activity for the purpose of collective bargaining or for other mutual aider protection, while on or through Facebook, that activity could be protected and the employer who tries to take action, disciplinary action, or you know, terminate the employee based on that kind of post can find themselves on the other end of an unfair labor practice charge. So that's why that's important. So if you, as the employer impose discipline upon an employee who is engaged in protected concerted activity, that's a violation of section eight A one of the National Labor Relations Act. So section seven gives the rights and section eight explains you know, what a violation of those rights looks like. And under section eight A one, an employer will violate the National Labor Relations Act if it interferes with, restrains or coerces employees in the exercise of their section seven rights. So it's an unfair labor practice, also known as a ULP to impose or threaten to impose discipline upon an employee who exercises their section seven rights by engaging in concerted activity for mutual aid or protection and of course that can happen on Facebook. 
So what's concerted activity? Cause these buzzwords don't mean anything if we don't get them defined in a way that we can understand. Well, an employee who acts with or on the authority of other employees and not solely by and on behalf of the employee, him or her or themselves, they're engaging in concerted activity. Now, the activity has to be under circumstances where the individual employees seek to initiate or to induce or to prepare for group action and where individual employees bring truly group complaints to management's attention. So the lone act of a single employee will be seen as concerted if it stems from or logically grew out of prior concerted activity. So these are interesting definitions and we always have to keep an eye on what the National Labor Relations Board is doing in terms of giving more color and definition to these terms. It's a political body with political appointments. You know, the members who are on the board that, we need to keep track of their philosophical tendencies so we can understand how these words may or may not be interpreted,. Whether it be more broadly or less broadly ,more narrowly. But this is the definition of concerted activity. So what's protected because employees can do lots of things in concert, it doesn't mean it gets the protection of the law. So concerted activity is for mutual aid or protection where the activity directly implicates terms and conditions of employment, and were initiated in preparation for a meeting with the employer to discuss matters related to these issues, that's what gets protection. Maintaining unlawful workplace rules can be problematic under section seven of the National Labor Relations Act. Workplace rules which can include and often do include these days, social media policies can be the source of a violation. So like I said before, these kinds of things do evolve with the administration who is in charge. 
And before December 2017, the National Labor Relations Board had in place an employee friendly standard for determining the lawfulness of a facially neutral employee work rule. And whether that rule interfered with an employee section seven rights. This was because there was a case called Lutheran Heritage Village-Livonia, which created a two step process to determine if a work rule would violate the National Labor Relations Act. The question was, would not could, would an employee reasonably construe the rule to constrict rights? And if yes, then A was the rule issued in response to union activity. And B was the rule applied to restrict section seven rights. But then under the previous administration on December 14th 2017, the National Labor Relations Board issued Boeing Company and overturned Lutheran Heritage Village. So under Boeing when reviewing a facially neutral policy or rule or handbook provision that when reasonably interpreted would potentially interfere with the exercise of rights under the National Labor Relations Act, the board would evaluate the nature and extent of the potential impact of the NLR a rights and the legitimate justifications for the rule. So for now, now that the administration has overturned, has turned over I should say. Boeing is still the law, but it's expected to be overturned. There was a general counsel memo number 18-04 that explained Boeing and how it would be interpreted. That's been rescinded by the current general counsel. And there was a case in 2021 called Stericycle. In that case, the board invited Amicus briefs to address the issue of whether it should adopt a new legal standard to determine if work rules violate section eight A one, and the briefs in that matter were due on or before March 7th 2022. So depending on when you're listening to this, there may have been some developments, but as of the time of recording, this is still a pending issue. 
So can the employee's activity lose protection under the act? Another request for Amicus briefs and another reversal. The National Labor Relations Board excused profanity under Atlantic steel, and that led to some pretty wild cases. And then in September 2019, the board asked for briefs on the issue of profanity. A decision was issued in 2020, this led to General Motors. And that case said that Atlantic steel has failed to be an effective legal standard. That abusive conduct is not protected by the National Labor Relations Act. And you know, a couple of other things that say what the burden shifting framework that we should look at would be. So again, keep an eye on the National Labor Relations Board and the things that it does, that the opinions that it issues so that you can see how this law, the law under this area is developing and how it may impact the social media policies that your organization implements and adopts and how it enforces those policies. Okay. So a little more relatable might be the idea of a tort based on a social media post. And commonly people will say, defamation, this was a defamatory post, this post defamed me. And anyone who's taken you know, first year law school torts knows what defamation is. We know that a lot of people think things are defamatory when they're not necessarily defamatory. But again, remember social media can be excellent, excellent proof that a defamatory statement was said. And it certainly can help us meet the criteria for publication. You know, a lot of people don't know what publication means in the legal sense. But if we have a social media post that people have seen, it certainly seems that we're gonna hit that element with more ease and certainly have better proof of it. So there are so many, you know, interesting fact patterns that could come up. 
One that I included for this presentation is the Williams versus H & H Auto Parts case. The plaintiff in that case posted on Facebook. Okay, I'm either really screwed up selfish or I'm justified. Trying to figure out which. I worked in sales in St. Joe learned quite a bit from some friends at a training I attended, now I'm back in sales. And I said, when I was hired, I refused to get screwed again. Well, I've been screwed, but I thought surely to God, they will make it right with the Christmas bonus I heard we get, my profit for the year $250,000. I'm not on commission now, aka getting screwed. My bonus 300, I feel sick. Am I wrong? Tell me I'm greedy and wrong. I don't have vacation or sick leave not yet. And every time I've taken it, unpaid of course I've been quote asked, if I needed to go part-time. I make $19 an hour, but the job I applied for was 50 K a year. I was too old for that, I'm sick. So the employer stated that after terminating this employee, she was terminated due to disruptive activities in the workplace and because she violated her non-disclosure agreement. The plaintiff sued for discrimination and other unlawful conduct and the employer counterclaimed for breach of the NDA and for defamation. The court held that the employer produced no evidence of damages on its breach of contract claim and that the employer presented no evidence that it asked plaintiff to correct her allegedly defamatory pace Facebook post, and suffered damages as a result of the post. So this is an interesting twist in that it's the employer, suing for defamation, not the employee saying you know, that the employer defamed him or her, them by firing them or by disciplining them et cetera. Here the employer was on the offense, but they didn't. 
What I think was interesting about this case was the court didn't say well I should say that the court acknowledged that there was no request to take down or correct the post. And I think this is an important practice point when we're talking with our clients about this. That we should remember to tell them, you know, make some noise if you see a post like this. Tell the poster to take it down, report it, do something to show that you believe this is defamatory. You know, I don't know if it's really here it's an element of proof. It could also be shown if they had made this element that it went to mitigating their damages. They tried to take down the post that was defamatory. But of course as we know, in many defamation cases, you have to show damages. It's an element of the claim unless it's defamation per se. And here, you know, the employer could not show any damages. Under the Fair Credit Reporting Act, employees might also bring claims. So I included the Sweet versus LinkedIn corporation case to illustrate this kind of fact pattern. The plaintiff was initially informed that she was going to be hired by a hospitality employer, but later she learned that they changed their mind after they checked her references. And she believed that the employer learned of these references through LinkedIn's reference search function. LinkedIn had marketed the reference search function as a way for employers to obtain quote, trusted references and to get the real story and any candidate, and to find references who can give real honest feedback on job candidates. But contrary to what was alleged by the plaintiff, the court held that LinkedIn's reference search was not subject to the Fair Credit Reporting Act, and they said that the plaintiff failed to state a cause of action against LinkedIn under that law and they dismissed the lawsuit. 
So just be mindful regardless of who you represent, that the Fair Credit Reporting Act could be implicated in some of these cases. Now discrimination actions. These are the kinds of things I think we typically would think when we think of a social media post, that someone is going to post something discriminatory, harassing, retaliatory, because what do human beings do when they're angry? They go right on social media and they vent. So this is very common. And again, it's not necessarily that the action is discriminatory or harassing or retaliatory under the EEO laws, but it's the posting of the words or the actions or the photo that gives us really good evidence of the conduct that's unlawful. Always keep in mind, sometimes the unlawful conduct is the post itself. And sometimes it's just the evidence and I'll keep reiterating it because I think it's so important. 
So there's a recent case of Johnson versus L'Oreal USA. The plaintiff sent text messages to a subordinate sounding in physical violence towards the colleagues, saying why C is about to get these hands and I'm about to crawl so deep and so far into a Managing Director's pay blank blank that he will think I live in his effing, small intestines. Don't you even dare think of coming for me, I will effing destroy you. So on social media, she tweeted a photo of herself, drinking a glass of wine during a Workday in Paris, which her boss believed was taken while she was supposed to be at a meeting. And she made statements referring to British people as racist British MFs, as hating white people, and as working for a POS company. So, and the record here in this case also had a lot of evidence of this employee's misconduct and performance issues. So the employee claimed race and disability discrimination, and the court granted summary judgment to the employer on all the discrimination claims because the employee couldn't establish that the employer's reasons for terminating her, I.e her text, social media post, and performance difficulties were pretext for discrimination. So, you know, sometimes you give people enough rope and they hang themselves. And I think this is one of those cases where we really see an employee who did not have a shiny halo as an employee would have a very hard time and did have a you know, a failing experience trying to claim the termination was unlawful based on discrimination, because there was so much evidence out there that this employee's conduct was horrible and did not meet what the expectations of the employer. So they defeated a discrimination claim handily based on what she did and what she posted. Which was again you know, pretty credible and pretty plausible in terms of reasons why they let her go. 
Other discrimination cases go to whether there was disparate treatment between the person posting the social media post and someone else, either someone else who posted on social media or someone who did the same thing that's being complained about. So the Woodward versus Jim Hudson Luxury Cars case, involved an employee who posted an article on Facebook with her name, place of employment and the message hands up, they won't shoot. Maybe white people understand proper English and simple direction better. The record had three relevant social media posts that allegedly were made by current and former employees of that company. And about which the employer was aware. A male employee had posted a meme that stated in part all lives matter and put your race card away. Another male former employee posted an image on his Facebook page containing the caption, it's not about color it's about the law and a third male employee posted an image depicting a Confederate flag and black men with sagging pants. The caption above the flag read, this does not offend me and below the men read, but this bullshit does. I'm sorry, I'm quoting. None were terminated for their posts. So the employee provided, excuse me, the employer provided inconsistent reasons for the termination, stating that the position was eliminated. And also stating that it was because of the Facebook comment that was racially controversial and inappropriate as a management employee. The employee claimed among other things, gender and disability discrimination, and the court denied summary judgment on those claims because the plaintiff showed disparate treatment of the comparators. 
So it's an interesting case where the employee is basically saying, yeah, I put this on Facebook, but so did these three, you know, similarly situated employees who differed from my protected class and nothing happened to them, or certainly nothing so severe happened to them. You know, why is this happening to me? And at least was able to defeat summary judgment. There are certainly many more cases that we can go into. I wanna move forward, but I would commend you to look at the slides that I don't go through in depth, for some more case summaries. Retaliation is another thing that can certainly show up through a social media post. 
So again, the next slide deals with Emerson versus Dart at all. And Emerson was a corrections officer who alleged retaliation based on filing sexual and racial harassment grievances that had been dismissed. She claimed she was the subject of malicious comments, reassigned shifts, and that her Sergeant failed to help her with the inmates. So as a result, she went unpaid medical leave. During the leave, the employee posted to a Facebook page shared by more than 1600 department of corrections employees, the following post. "To my fellow officers don't get in a fight that is not, I repeat that is not yours. I've be just received the names of some people that the county is attempting to use as witnesses. This is a PSA for those of you still believing that being a liar, brown-noser will get you something. Messing with me will get your own certified mail. So glad that the arrogance of this employer has them believing their own." And then there's an emoji. So not only was summary judgment entered, but the court awarded sanctions. So again, you'll find as you research these cases, you know, many interesting fact patterns of many quotes about posts that are not easily quoted or repeatable because of the language contained in them. And again, sometimes the language alone would show the poor judgment that could lead to a termination. The issue there would be the consistency. And is this how we treat everyone who makes these kinds of posts or are we singling out certain employees and why? Okay. 
The next slide discuss discusses, a Family Medical Leave Act Claim. And in that situation, this case was Jones versus Gulf Coast Healthcare. The employee was the activities director for a long term nursing, long term care nursing facility went on FMLA leave for surgery. And while on the leave, which had also been extended for 30 days, he put pictures on Facebook of his trips to Bush gardens and St. Martin, pictures walking around the theme park, being on the beach, posing by a boat rack and in the ocean. Now, the thing that, let me digress for a moment, the thing that comes up with the FMLA claims is if you have a serious health condition, how can you be gallivanting and enjoying yourself? Are you being honest about your serious health condition? Or are you know, are you being honest about your limitations? So sometimes we have to keep in mind if for example, a firefighter is posting pictures while an FMLA leave of themselves laying on a beach. Well, being on a beach is certainly not strenuous or stressful and being a firefighter is. So just because you're on you know, you're somewhere lovely while you're on FMLA leave, does not mean that you're lying about the serious health condition that led to the need for FMLA leave. But on the other hand, and I think I mentioned this the beginning of the program, if you're claiming that you had leg surgery and you can't move around, and that's why you can't be at work for your job, that requires you to stand all day or sit all day because you're immobilized while you heal. And then you post pictures of yourself you know, playing baseball or skiing, or you know, swimming in a pool. Yeah, the employer's going to have reason to trust the veracity. And perhaps again, these are the kinds of things we have to be thinking about when we see people who post you know, are they being truthful, or am I just being judgemental that while on FMLA leave, they are not completely miserable. 
So back to the Jones case. When this employee returned to work, his supervisor, who would not let him return earlier on light duty, confronted him with the Facebook post and said that corporate believed based on the posts that the employee could have returned earlier. The employer suspended the employee so that it could investigate his conduct while he was on FMLA leave. And the concerning part here is that the employee failed to respond to the charges and then was terminated. So if it was legitimate, you do wonder why not just respond. In any event the court denied the employer's motion for summary judgment on the FMLA retaliation claim, because the employee wasn't informed during his suspension meeting or in his termination letter, that he'd violated the employer's social media policy. Because no further investigation was in fact done. And because the employer couldn't identify any employee who was adversely affected by the posts. This company had a social media policy that said it's purpose was to prevent employees from posting harmful or negative comments about the company staffer facilities, and the employees posts didn't do any of those things. So there were a lot of inconsistencies and contradictions regarding the proffered reasons for the termination. And there was a factual issue regarding the existence of pretext. Okay. Couple more areas of law. And then we're gonna talk about some strategies for drafting and enforcing. 
Two more things, unemployment insurance benefits. I brought to your attention, the case of Christian versus New Castle County Head Start, where an employee had made negative posts on her Facebook account about the company and about her coworkers. She specifically identified herself as a teacher with this organization on her Facebook account. And in her post, she named her employer by its acronym, which was readily understood you know, who the employer was, and the employer terminated her based on these policy violations. So they had a social media policy and disciplinary action policy that stated, any employee who uses a personal website or other form of social media to disparage the name or reputation of this employer, its practices, its governing bodies, officers, employees, volunteers, or partners will be subject to serious disciplinary action up to an including termination of employment. So the court ruled that the board's decision that there was just cause for her termination, based on its finding that the post violated the social media policy was supported by substantial evidence and it was free from legal error. So that was that case. And then finally Pride worker's camp claims. I wanna just bring to your attention. This is similar to FMLA. There will be employees who are out on worker's camp, claim they can't do anything. And then they get caught because of what they post. 
So in Crow versus Marquette Transportation, the employee claim that he suffered a work related injury, but then revealed on Facebook that the accident occurred while fishing. It was not clear how the company got the Facebook information. And of course that can be very important because there are laws prohibiting employers from requiring or even sometimes asking an employee to show the employer, its social media posts or pages or accounts. So here the employee deactivated his account four days after he received a discovery request. He answered misleadingly, but truthfully at his deposition that he didn't have a Facebook account. Yeah, because he had deactivated it a few days earlier. So the court found that deactivating and deleting your account were two different things. They found that the Facebook postings were discoverable and the judge ordered the employee or the former employee to submit the production to the company, along with his login, current credentials for any Facebook account that he claims to have once had, but can no longer access so that the employer can evaluate the response for itself. And they also allowed the employer to depose him on those issues. 
So again, what you say on social media can really get you into hot water. If you are claiming you have a work related injury and then the employer finds out, either you don't have this, that kind of injury and or it is not work related. Okay. So now let's talk about how do we avoid legal claims based on an employee's social media usage? Well, I think the answer's twofold. You have to have a legally compliant social media use policy. And on a case by case basis, you must consider the legal ramifications of firing employees or disciplining them based on their social media posts. And it takes work to write a legally compliant, social media use policy. And again, because of how the composition of the National Labor Relations Board can morph over time, based on you know, the political appointees who are serving, you know, what's an okay or compliant policy today may violate the National Labor Relations Act in a couple of years. So we always need to be mindful of what is the board doing and is our policy going to put us at risk of an unfair labor practice. And again, you can see what the general council memo on Boeing was with different classes of policies and you know, how likely that is to be eviscerated by decision, but also how the general counsel currently has rescinded the memo, explaining all those different categories. 
So what should we include in our social media use policy? The first thing to include is a definition of what is considered social media. A good definition is one that includes, but that is not limited to, typical lawyer speak. Personal blogs sites, such as Facebook, Instagram, TikTok, Snapchat, LinkedIn, and Twitter. Video, or Wiki postings, chat rooms, personal websites, or other forms of online journals, diaries or websites not affiliated with the company. What else should we include in our social media use policy? Well, we should state that the company, respects the employees right to write blogs, use social media and use social networking sites. We should certainly state that the company doesn't wanna discourage employees from self-publishing and from self-expression. We should state that the company takes a neutral stance towards employees who use social media in connection with personal interests and affiliations or for other lawful purposes. Now we have to remind, we also have to remind our reader that the company has the right and duty to protect itself from having employees indicate that they are speaking on behalf of the company when they're not authorized to do so. And we should state that the company has the right and duty to protect itself from unauthorized, the unauthorized disclosure of confidential and or proprietary information that does not relate to the terms and conditions of its employees employment. 
We should state that other concerns that the company has, are served by this policy. And we should name what those concerns are. Why do we have this policy? What's our goal in enacting it? What are we trying to prevent address encourage? And we should also include a code of conduct for employee's use of so social media for professional purposes, if they are authorized to use it that way. Either on behalf of the company or on LinkedIn or on the company's website, et cetera. The more direction that we give the better the outcome will be. With respect to what we should tell employees when they use social media, we should certainly tell them that they must. They must make clear that they speak for themselves, not for the company through their personal use of social media. So if an employee chooses to identify themselves as an employee of the company, others can view them as a spokesperson for the company. And the company certainly may not want that, certainly may not have authorized that and they don't wanna be seen to have ratified it after the fact. 
So the policy must make clear to the employee that the employee has to make clear that their comments and posts on social media are made by them as an individual, not as an employee agent or representative of the company. And two that they have to make clear, they are not authorized to speak on behalf of the company. And this becomes a bigger issue as the person who's posted is becomes more senior or is more senior within the company, because the higher up the ladder they are, the more likely it is that someone could interpret that they are in fact posting on behalf of the company rather than on behalf of themselves. So the employee has to make clear that it is the employee's speech and they have to understand it is their speech, unless they have specifically been authorized in writing, let's not accept verbal authorization. It's very easy to, for people to forget that something was or was not said if it's only verbal. So the authorization should be in writing by the president or the executive director of the company that employees are not authorized to and are thus restricted from speaking on behalf of the company through social media. Employees are personally responsible for their commentary and posts through social media. And employees can be held personally liable for commentary that's considered defamatory, threatening, intimidating, harassing, retaliatory, obscene, proprietary or libelist. And again, what we mean by that is that, they are not protected just because they said, something posing as someone speaking on behalf of the company. If I work for someone and I say something defamatory, that is my problem as the person who made the post. Not necessarily the company's problem as the person's employer. Again, particularly if the employer has made it clear that this employee is not authorized to speak on its behalf. 
We also wanna make sure that we tell employees what personal social media use is prohibited. You have to be very careful when you restrict, like we've talked about lawful off duty conduct, but you can certainly restrict the resources that the employee uses to do their social media posts. For example, we should make clear in our policies that employees cannot use company equipment, such as computers, company license software, or other electronic equipment, company facilities, or work time to conduct personal blogging or personal social media or social networking activities. We should also tell employees that they cannot link from a personal blog or social media or social networking site to the company's internal or external website. Employees must be told that they must use their own personal email address and they can't use their company email address as their means of identification and communication for social media use. The goal here is really to disconnect in every possible way, the employee's personal identity from the employee's professional identity. So as to eliminate or vastly minimize the employer's potential exposure for the employee's social media posts. And also so that the employee understands if they break these rules, they could lose their job or face other disciplinary action that would be imposed for any kind of violation of a company rule or a company policy. We wanna make sure that employees know that they cannot use blogs or social media or social networking sites to unlawfully threaten intimidate, harass, discriminate against, or retaliate against employees, the company, it's customers, or anyone associated with the company. Again, anything that would be unlawful or prohibited by company policy, whether or not it happened on social media, that's what we're looking at here. 
We will also tell employees that they cannot post through social media, privileged, confidential, and or proprietary patient related if it's a medical practice, client, related company related, or vendor related matters, information or documents, unless the information relates to the terms and conditions of their employment. This is a throwback to the National Labor Relations Act protection of concerted activity for mutual protection. And if someone is complaining about the terms and conditions of their employment or printing their paycheck, or is putting up a picture of a dangerous condition at the work site that might otherwise be considered confidential because we're not allowed to post pictures of the inside of where we work, you know, make sure there is some awareness that if the employee is doing this as part of protected activity, under section seven of the National Labor Relations Act, you cannot prohibit them from doing this kind of thing on social media. So when people are talking about, you know, they're making me work too many hours and they're not paying me overtime, that kind of thing absolutely can be posted, even though it relates to the terms and conditions of employment and would otherwise potentially be confidential or proprietary. We never ever want to include in our social media use policies, any kind of provision that could be reasonably read to prohibit discussions by employees about their wages, their hours and the other terms and conditions of their employment. 
Again, this can trigger an unfair labor practice, and that's a big headache. And this kind of discussion is not only permitted, but it's actually encouraged under the National Labor Relations Act. So be very mindful that you don't enact policies that would prohibit it. Now, how do we monitor, employees social media use and violations? Well, employees should be cautioned that the company may or will monitor the public comments, post blogs, forums, and discussions about the company, it's employees, it's customers, and the industry that employees post on the internet. Employees should be urged to report any violations or perceive violations of the social media use policy to a designated official within the company. And they should provide screenshots or printouts of the pages that they believe contains the violation. So there really needs to be a complaint process in place, providing the screenshot shouldn't be hard, but the employees should not have to wonder to whom these should be provided once they're taken. Also employees have to be assured that all reports of violations will be investigated and responded to, and disciplinary action will be taken against those who violate the policy. We want to make sure that employees understand there will not be retaliation for making these kinds of reports. 
As of the time of this recording, there is a, a large amount of social media privacy legislation that's been enacted in this country, 27 states, including Maryland and Virginia have laws restricting employer access to personal social media accounts. I have provided a link in the materials that you can take a look at, and that is periodically updated. And that link will give you an overview of all of the different laws that exist regarding employer or educator access to social media passwords, or accounts of employees and of students. It's published by the National Conference of State Legislatures. And it's an extremely useful resource, again because it has such a comprehensive overview and because it's updated with some regularity. 
In Washington,D.C, Washington, D.C does not have a specific law, regarding employer requests for social media passwords, but it does have a law protecting students' digital privacy and DC also has a Wage Transparency Act that's been codified. Under that law, an employer cannot prohibit an employee from inquiring about disclosing, comparing, or otherwise discussing the employee's wages or the wages of another employee. And the employer cannot discharge discipline, interfere with, or otherwise retaliate against an employee who inquires about discloses compares or otherwise discusses wages, or is believed by the employer to have done so. And that's why there can't be this kind of policy saying that these are private matters and they can't be discussed or revealed, which again might remind you of the National Labor Relations Act. But here, because DC says you can't have this, kind of prohibition, you certainly can't have a social media policy that prohibits it be from being discussed or addressed through social media. 
In Maryland, the Maryland Labor and Employment Law Code states that an employer cannot request or require that an employee or applicant disclose any username, password, or other means for accessing a personal account or service through an electronic electronic communications device. And similarly, an employer may not or, and as you'd expect, the employer may not discharge discipline or otherwise penalize or threaten any of those things to an employee for the employee's refusal to disclose any such information. And it can't fail or refuse to hire any applicant as a result of the applicant's refusal to disclose any such information. 
Now, if the employer, based on the receipt of information about the person's use of a personal website or web based account or something like that for business purposes, the employer can conduct an investigation to make sure that certain or applicable securities or financial laws are being complied with, or that regulatory requirements are being met. And finally, an employer certainly may based on the receipt of information about the unauthorized downloading of an employer's proprietary information or financial data to a personal website or web based account et cetera, they can certainly investigate that employee's actions. In Virginia, employers in Virginia are prohibited from requesting usernames and passwords for social media accounts of their current employees or of their applicants. And the Virginia code prohibits employers from requiring a current or prospective employee to disclose the username and password to their social media account from requiring a current or prospective employee to add an employee or supervisor or administrator to his list of contacts. Can't make you friends somebody of using any login information inadvertently obtained in order to access an employee social media account. From disciplining an employee for exercising his or her, or their rights under this section, or for refusing to hire an applicant for exercising their rights under this section. Those are some laws that are particularly applicable where I practice, but of course since 27 states, as of now have regulated this or have legislation, I certainly urge you to check what's going on in your state. 
So as you can hopefully see, there's a lot to think about when we're drafting social media policies. And when we're thinking about taking action against an employee, based on their social media posts or other social media usage. There are many, many stories in the news every week. The January 6th insurrection is a perfect example about how people, what they posted on social media has gotten them into loads of trouble, legally, from a criminal law perspective, from an employment perspective. So that's perhaps one of the most recent and largest examples, but that doesn't mean that things like this don't happen in much smaller communities on much smaller scales, it does. And there's nothing wrong with having a little control over social media use and having policies that your company feels comfortable with, but just be aware of the risks of over policing and under policing the social media use. And of what can happen if you take action against somebody based on their social media use, when you don't take similar action against others who do the same thing, or when it's very haphazard, or when there are no predictable standards. I find this area fascinating and interesting. Everyone likes to see what's going on on social media. It's a integral part of most of our lives these days and cases are coming out all the time with new decisions and new information. So please make sure you check on this topic often, if it's in an area that affects you or your practice, personally. 
My name again is Diane Seltzer. I practice in Bethesda, Maryland. I practice exclusively employment law, and you can certainly reach me @w.w.w.seltzerlawfirm.com, S -E -L- T- Z- E -R L-A-W F -I -R- M.com. Or you can email me @dseltzer, D -S -E -L-T-Z- E-R @seltzerlawfirm.com. Thank you so much for attending and I hope you have left much wiser and much more informed than you were when you began listening to our program. Thank you.
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