Technology: Liability dangers raised by social media

How to handle employees who are always everywhere, but never anywhere

Employers, imagine that your employees’ use of Facebook and Twitter is akin to being at the controls of a forklift. Consider the employee who is angry because he has not been adequately trained and is tired of having to be on call 24/7, or the employee who is upset because she believes overtime is being unfairly distributed among company personnel.

What if these two employees decide to post an angry grievance on Facebook, which is then commented on by other friendly employees? What risk does that present the employer? Building on the forklift analogy, imagine that the Facebook posts and comments cause the disgruntled employees to lose control of the forklift, ultimately injuring another employee or the company itself.

As we manage our instant communications, our employees are always everywhere and never completely anywhere. In 2011, various government agencies weighed in on the use and abuse of social media in the workplace. This new age of around-the-clock connection has raised issues for employers and employees.

Take smartphones, for instance. Now, employers may be subject to claims when employees cause injury or damage to others because they are driving while distracted. Such incidents can bring employer policies and training practices into sharp focus.

The National Labor Relations Board, long known principally for its policing of union-management relationships, has recognized a new genre of cases in light of social media use in the workplace. An overarching concern deals with the extent to which employers may monitor and act upon employee Facebook or Twitter communications that address workplace issues.

If an employer acts upon an employee’s critical or even defamatory post, would this give rise to liability for interference with the right to engage in “protected concerted activity” with “friends” who are also co-workers? Could the employee file a discrimination claim?

Similarly, the Department of Labor and the plaintiffs’ bar have an interest in the expanding use of social media. With 24/7 connections, employees can access work contacts at any time, creating the risk of employee overtime claims as they click and respond on business issues, with or without the actual knowledge of management.

Likewise, Occupational Safety and Health Administration issues also come into play. What if an employee becomes distracted while she is commenting on a Facebook post, and this ends up jeopardizing the safety of another employee? Failure to adopt policies that address the dangers created by distractions in the workplace may expose an employer to mounting employee safety claims.

In this brave new world of instant communication, employers must develop policies and practices that address these issues and more. And it’s a tricky area to maneuver: The protections afforded by the law can appear conflicting. For example, consider a worker who sends sexually or racially offensive posts or messages. This employee complains to management about a non-related issue.

As a result, management has an obligation to investigate and take appropriate disciplinary action. Under this legal obligation to take action, however, management may decide to download all messages—some of which may be protected and concerted communications between employees. Without appropriate corrective action, the employer may be liable under Title VII or state laws. On the other hand, taking action might lead to a claim of interference with protected communications under the applicable labor laws. 

In summary, the age of instant and open communications has surfaced new theories of complaint, and the employment issues they raise have yet to be fully developed. 

Contributing Author

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Terence Connor

Terence G. Connor is a partner in the Miami office of Hunton & Williams LLP, and in the firm’s labor and employment practice. He has...

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