April 29, 2020

COVID-19 Social Media Considerations for Employers with Employees Returning to Work

Holland & Knight Alert
Nicholas A.F. Sarokhanian

Highlights

  • Even those employers with the best social media policies can be placed in difficult positions when confronted with negative social media usage by their employees. The COVID-19 crisis has added even more complexity to these challenges.
  • With shutdown and shelter-in-place orders in place as part of the response to COVID-19 pandemic, many companies have been in the news after employees complained on social media about working conditions or other issues associated with the pandemic.
  • This Holland & Knight alert looks at a few considerations for employers dealing with social media issues in the COVID-19 era to keep in mind as they start to reopen their doors.

After weeks of encouragement to stay at home to flatten the COVID-19 curve, government officials are signaling that restrictions will soon loosen. The White House published its three-phased "Opening Up America Again" guidelines on April 16, 2020, and governors in a number of states already have begun relaxing some of their executive orders to shelter in place.

Yet even with the COVID-19 shutdown orders in effect, many companies have been in the news after employees complained on social media about working conditions or other COVID-19 issues. Employers reopening their offices and facilities for business should keep the following considerations in mind when dealing with social media issues in the COVID-19 era.

Revisit Social Media Guidelines and Employee Handbooks

Generally speaking, employers can protect their reputations and other business interests by establishing guidelines and policies covering their employees' social media usage.

But employees have the right to use social media — even if they use it to discuss certain aspects of their work. Federal law (the National Labor Relations Act) protects "concerted activity" of employees for "mutual aid or protection," which can include work stoppages and taking to the news or social media to air grievances about wages, hours or working conditions affecting a group of employees. Indeed, the National Labor Relations Board (NLRB) has considered even facially neutral social media rules set by employers to be violations of federal law. The following (non-exhaustive) examples help illustrate what is considered fair game and out of bounds:1

 

Likely Permissible Rule

Likely Unlawful Rules

Requiring employees to not speak on behalf of employers unless authorized

When discussing work, requiring employees to use their real names and titles and to explain that they are speaking only in their individual capacities

Prohibiting use of employers' logos and other intellectual property, as well as the use of employers' names in social media account handles or in URLs

General ban on voicing complaints about employers or working conditions

Prohibiting disclosure of "personal information" or "protected health information" of other employees

Prohibiting the disclosure of any employee information whatsoever (such as contact information or information about wages and pay)

Prohibiting disrespectful, abusive, bullying, harassing, discriminatory or defamatory use of social media

Prohibiting discussions, reviews or recommendations of co-workers

Prohibiting the disclosure of confidential business information, including photos reflecting that information

Prohibiting employees from discussing unions or unionization efforts

 

Employers should have experienced labor and employment counsel review their existing social media rules and employee handbooks to minimize the risk that their rules may be called into question by regulators. Additionally, employers should carefully consider what consequences — if any — should be imposed on employees that violate lawful social media rules, as well as consider revising other policies and sections of handbooks to ensure a cohesive system of guidelines and rules.

Be Prepared to Act Quickly if Employees Violate Lawful Social Media Rules

Even those employers with the best social media policies are placed in difficult positions when confronted with negative social media usage by their employees. For example, employers must use good judgment to determine whether their social media rules have been violated, which sometimes is made more difficult when it is necessary to parse the meaning of the use of social media features such as "likes" and "retweets." And even if usage does not violate employers' social media rules, employers still must judge whether they are entitled to take action because certain usage has lost protection for being excessively disloyal, reckless or maliciously false.

The COVID-19 situation adds even more difficulty to these already substantial challenges, with extremely rapid changes in regulations, an accelerated news cycle and high stakes in terms of reputation, employee morale, customer confidence and financial and market conditions.

Employers therefore cannot afford to wait until after a social media crisis erupts to find experienced and technologically adept labor and employment counsel to help them make difficult judgment calls, manage crises and defend decisions that may later be questioned by regulators and opposing counsel.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


Notes

1 See NLRB Sept. 5, 2018, Advice Memorandum

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