VANNOY:

Does your social media policy violate labor law? I’m Mike Vannoy, vice President of Marketing at Asure and help me unpack this topic. We, my guest today is Brian Shenker. If you’re a regular watcher of the show, you know Brian. He’s an attorney at the Long Island New York office of Jackson Lewis. Brian’s practice focuses on representing employers in a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class action and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage and hour audits conducted by the US and New York State Departments of Labor, and Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment and retaliation. Brian, welcome back to the show.

SHENKER:

Thanks for having me, Mike.

VANNOY:

Okay. So this is one of those things that you know, I don’t, you don’t have to go back that far. You never would’ve thought was a thing that you had to have a policy around it, but social media has just become such an integrated part of most of our lives, right? That you maybe you didn’t think you had to have a policy for when and how to use a cell phone when they first came out in, in, in the workplace. But now, mobile phone is kind of synonymous with social media because we really do live our lives in this very integrated way. Sometimes my boss might even ask me to post something on my LinkedIn profile about work. Maybe I’m, while on LinkedIn, I’m chatting a a friend. Maybe I’m in Facebook, Instagram, maybe I’m just wasting time and I’m not working. I’m scrolling through TikTok. I mean, this is a, a complex area with, with lots of areas of gray. I, I would think but there’s probably more black and white than most employers realize when it, when it comes to law. Would, would you agree with that?

SHENKER:

Yeah, that’s true. And right. You know, social media has really developed at such a quick pace over, you know, really the last decade or so. But when it comes down to it, a lot of the things we’ll discuss today are simply applying other policies that a company should have in the social media context. Now, there obviously are challenges to that and certain intricacies we’ll get into. But yeah, a lot of this stuff, you know, you know, a comprehensive social media policy will, you know, for instance, include your, you know, anti-harassment on, you know, on social media. So some of the things really just transfer right over, but Right. Of course, there, there are other, you know, issues that can be less intuitive for companies.

VANNOY:

So, so let’s just start with the, the basics. It, it, this might sound self-evident, but I think it’s, it sounds self-evident in the name, but very few people, I think it’s a percentage of especially small business owners have it in place. You know, what is an employer or social media policy? What, what’s the goal of it? What is, what are you trying to accomplish it? What’s the purpose of it?

SHENKER:

Yeah. So I think you hit the nail on the head, right? You know, before we get to what the policy should include, right? What’s the goal? What are, what are the issues here? You know, a lot of the risks with respect to, you know, social media include things like, you know, employees misrepresenting the company’s you know, view on certain topics or, you know, inappropriate non-business use of social media potential disclosure of the company’s, you know, confidential information, as I mentioned earlier, harassment. And so in crafting a social, a good social media policy you know, an employer should, you know, consider, you know, it a comprehensive thing, right? They’re gonna look at, you know, what are the other rules that we have for the workplace? And, you know, how do those apply here? And so right there, there are those, those are some of the main considerations that, that we have.

But you know, in terms of specifics, in terms of the policy, yeah, I think, you know, the first thing is, as you said, you know, social media is constantly changing, whether, you know, it was, you know, Facebook, you know, going back several years now, you’ve got right TikTok, you know, Twitter, you know Instagram, all sorts of different types of social media. So, you know, in defining social media policy should really define it very broadly, right? Because, you know, we don’t want our definition, definition of social media to become, you know, outdated a month after going into the handbook. So it’s generally going to include, you know, things that are done on online platforms, you know, whether social or professional, you know, posting commentary or opinions or sharing, you know, pictures, audio, video online you know, in all types of online communities. So, that’s what we’re really talking, you know, in terms of what is, so

VANNOY:

We probably won’t go too much deeper on, on, you know, the what it is, because we’re gonna get to some of the don’ts and we’re gonna talk best practices. But I think we first probably have to understand what the law actually says. So the, the, the law is the National Labor Relations Act, and, and certainly that’s broader, that’s not a social media law, per se, but social media is included in this. Can can you maybe start casting a wide net? Just explain what the N L R A National Labor Relations Act is, and how is it that that governs social media in the workplace?

SHENKER:

Right. So, you know, great. Yeah. I, I think that’s where we should start. Exactly. So, the nlra is, you know, goes back, I think it was enacted in 1935, and many employers have this misconception that it only applies to unionized companies. But there are certain sections of it, particularly here we’re dealing with section seven that deal with employees right. To, you know, act and discuss terms and conditions with their with their coworkers. So that’s what we’re, you know, mainly concerned with here and Right. You know, in terms of social media policies you know, again, you know, it’s, it’s how the policy, and there are lots of different pol, you know, policies we can go through affect employees ability to, you know, discuss their terms, whether it’s compensation or benefits or scheduling. You know, and one thing to always keep in mind with the N L R B, which is the National Labor Relations Board that enforces the act, is that it, it is certainly has political leanings, right?

Because the board and the general counsel are appointed by the president. So we tend to see you know, shifts in enforcement and positions on you know, lawfulness of various things depending on the makeup of the board. So certainly right now, under the bi, the Biden administration, we can expect that the N L R B might take closer looks at you know, social media policies, and whether they, you know, in impinge on, you know, a concert protected concerted activity, that, that’s the term today protected, concerted activity, fancy way of saying more than multiple employees coming together to discuss, you know, conditions of employment. So, got it.

VANNOY:

Yeah. So, so, so, so so the, the, the origins of the law really are more about protection of workers’ when it comes to unionizing and organizing, right? Organizing to a single voice, but where it spans into social media, it’s, it’s more specific than the use of social media. It in and ties back more to the types of speech that is protected as underpinned by really the core, meaning the ma the, the, the main gist of the N L R R A is that, am I saying that right?

SHENKER:

Right. No, exactly. And so what we’re really looking at when, you know, a company implements a social media policy is we keep an eye on, right? Whether it’s what it’s restricting, right? And how much employee, you know, interaction or conduct, it’s restricting, and you know, what the purpose is. So, you know, even apol social media policy that’s, you know, neutral on its face the nlr, the NLRB will look at the potential impact on employees rights and whether the company has a, you know, legitimate justification for having that policy. Okay. So, you know, when we look at the, these decisions from the n l rrb, the context of the restrictions matter significantly, right? So you know, for example, you know in the healthcare or pharmaceutical industry, there’s a policy a company policy that it, it was necessary to ensure that rather there they could limit social media activity to matters unrelated to the company if necessary, to ensure compliance with securities and other and other laws. And so this policy restricted employees from disclosing confidential information of the company, including, you know, personal health information of customers, and Right, that was found to be lawful because, you know, while an employee might construe that policy to restrict them from communicating about certain terms of employment that the employer might deem confidential, clearly the intent of the policy was to restrict those proprietary type of things and, you know, patient information. And it wasn’t designed to prevent discussion of of workplace you know, conditions.

VANNOY:

Yeah.

SHENKER:

So, so maybe what we often,

VANNOY:

Yep. Yeah. So, so, so what prevents a company, and this is maybe where you’re going, so forgive me if I cut you off. Mm-Hmm. You know, maybe, maybe I’m an employer. I’m like, you know what? These, these lines are too blurry for my taste. And you shouldn’t be on Facebook and Instagram and TikTok anyway, cuz I’m paying you to work. You know, get, get back to it. And our policy is no use of social media in the workforce. It, because I’m not explicitly saying the types of things you can’t do. Can I, am I okay? Am I in safe ground? Just setting that policy? No social media in the workplace.

SHENKER:

Yeah. So, you know, potentially, right. We would have to look at, you know, what that implicates, you know, does that mean that, you know, an employee can’t take, you know, use their phone to take a picture of, of a work condition? Now that’s probably not social media, so you would be fine. But, you know, saying, you know, certainly, you know, something about using social media while working is something where a company’s gonna be on much better ground than, you know, some broad you know, requirement. You know, that goes, you know, beyond the workplace. Got it. You know, so, you know, you know, there are all sorts of things that companies might do that, that the NLRB could be, you know, find unlawful. Like for instance, you know, disclaimer requirements, right? You know, some companies are very concerned that employee statements on social media might be construed as a position of the company, right?

You know, and that’s a, that’s a big issue for companies, right? You don’t want an employee going out there being associated with the company and having a, a negative impact on, you know, the company’s brand. Right. So there’s actually an n be, you know, advice memo on that that determined, you know, that basically companies, you know, have a legitimate interest in, you know, having, you know, employees identify themselves on social media as employees of the employer, and that, you know, they’re, when, you know, they’re making a post that could be, you know, considered on the employer’s behalf that they make sure it’s, you know, expressed on their personal, you know, opinion. And so can we, can we, you know, but again, these are three areas, right?

VANNOY:

Yeah. Can we feel the boundaries of that one out? So if I’m on LinkedIn, more of a business platform, it is, I’m clearly signifying who my employer is, and I make a post or I comment on someone else’s post, that’s basically, it’s pretty clear I’m talking crap on my employer, my boss, my industry or something, because the platform itself lends itself to whom I’m employed for. Is there an implied affiliation that you’re speaking on behalf of the brand?

SHENKER:

Right? So it depends. No, not necessarily. I mean, there were other ones, you know, there have been other board decisions that have said, you know, a, a requirement that, you know, employees identify themselves by name when making those comments, you know, went too far. You know, and, and that, you know, so there, there are some, you know, again, it’s also, you know, facts specific and policy specific. But for instance, you know, just generally, you know, you know, provisions that you can’t go out there and disparage your employer may are typically going to be, you know, invalid, right? So, you know, cuz those could be, you know, those really implicate discussions about employment terms. So if, you know, you might go on LinkedIn and you know, you’re associated with the company and you start a conversation about, you know, you know, my, the scheduling at this company is really awful, the managers, you know, really, you know, make it burdensome for employees.

And then maybe another one of your coworkers joins in that discussion and comments on it. You know, now you have concerted activity where you’re potentially talking about terms and conditions. So when we look at policies, right? You know a policy that, you know, prevents employ employees from disparaging the company online, that’s not gonna pass muster because it prevents that type of thing. Got it. But, you know, there are narrower, narrower ways to address that, right? You could have a provision that prevents you know, employees, you know, potentially from disparaging customers or, or such. You know, and, and again, it, it all depends on the specifics of the policy. But, but yeah, it, it, you know, it’s, it’s very interesting how the board will look at these things.

VANNOY:

So, so the essence of the law, and it just coincidentally cascades into social media, is a form of speech. Am I thinking about that the right way? Sure. Yeah. So it just be, it just coincidentally cascades into social media as a platform as for, for this protected speech, the policies must really center around not preventing employees from talking about legitimate business employment concerns, whether it’s safety, discrimination you know, work environment, et cetera. That, so any policy you make, any social media policy has to be focused on that am I think, is that, is that right?

SHENKER:

Sorry. So, yeah. So, you know, there are other policies, for instance, like, you know, confidential policies, right? So clearly, you know, an employer has a legitimate interest in preserving their, you know, confidential information. But, you know, there are, you know, various nlra decisions where they’ve found that employees have the presumptive rights to disclose terms and conditions of employment. So really, you know, a lot of these policies should, you know, in involve examples, right? I think social media policies are really good when they include examples o of what we’re saying to really clarify that, you know, th this policy about not, you know, disclosing the company’s confidential information, right? Let’s give an example, because it’s not about, hey, you can’t disclose your comp, you know, your compensation, right? We’re not saying that’s confidential. But it might be, you know, more trade secret information,

VANNOY:

Right? Right.

SHENKER:

You know, you know, so you know, and look, there, there are also other, you know, company policies that that we’ve seen that have been, been invalidated such as, you know, cuz companies go go about this. You know, you think of creative ways to restrict potential negative impacts. So, you know, we’ve seen company policies that require that you’re always honest and accurate when posting information on social media. Which, you know, doesn’t sound so bad, but the NLRB has concluded that employees have the right to make inaccurate statements, you know, as long as they’re not, you know, maliciously, you know, defaming. Yeah. but that, you know, even those types of accuracy requirements, you know, can, can run a foul of the law.

VANNOY:

Yeah. There, there may not be such a thing as alternate facts, but there is alternate opinions on facts. Right?

SHENKER:

Exactly. Exactly. And so those are the types of things that you can see, right? If, if I’m an employee and I’m subject to a policy like that, it’s going, going to chill my, my speech, because now I’m concerned about, you know, is everything I’m putting online completely accurate? Am I going to be disciplined for putting something out there that’s inaccurate and that has a chilling effect, which, you know, the NLRB would find, you know, un unlawful. So,

VANNOY:

So, so what can, so what can an employer do? I mean, cuz you don’t want, I mean, you, you can say at the end of the day if you are creating an, if you’re hiring the type of people and you’re creating an type of an environment where people feel the need to go to social media to talk crap about your, your business, then you probably got a bigger problems, right? You got a, you got a culture problem, you got a talent problem, you got a business problem, you got a, a management problem, a leadership problem, you got a bunch of other stuff that’s probably way more important to focus on than your social media policy. But it’s also reasonable for a business, maybe a business who’s doing everything largely right? And you could have, you know, one employee that sees the world through a very distorted lens blow you up pretty bad. And so, so where’s the line around, maybe, maybe defamation is too strong, but where’s the line around allowing and protecting their, their free speech as guided by the N L R A at the same time? Hey, you can’t just, you can’t, what you just said might be your opinion, but it’s not true. And it’s hurting my ability to attract new employees and new customers.

SHENKER:

Yeah. So e exactly. So really where that line is drawn is at, you know, personal gripes, right? So the nl r b will not consider, you know, social media to be that, you know, concerted activity when it’s merely reflecting the employee’s, you know, personal issues and doesn’t involve, you know, a broad, you know, workplace issue. For instance, you know you know, a Facebook post that you know, when an employee complains, you know, that you know, there’s not enough funding or not enough vehicles or, you know, you know, you know, something to, you know, perform their job. But, you know, if there’s no evidence that, you know, this was part of a broader discussion or that, you know, employees were bringing these issues to management, you know, that won’t be you know, you could discipline an employee for that. You know, similarly, okay, you know a Facebook post about, you know, a bad interaction with a manager, right?

That, you know, the, the, the real question on a lot of these posts, online posts is whether other coworkers start, you know, engage in the discussion towards these workplace conditions and that it’s something that would be brought to management, right? Cause it’s the same thing. If employees were discussing this in person, it could be protected. But for instance, if an employee just, you know, posts that themselves on Facebook and there’s no other interaction with coworkers or, you know, the coworkers aren’t commenting, Hey, I’ve had experiences like this too, but just saying, Hey, I feel for you, you know, that that stinks. You know, then those, those things, you know, when it’s just, you know, providing emotional support, for instance, you know, to someone who has this personal issue with a manager that’s not protected activity and, and, you know, an employee could be disciplined or terminated you know, likewise, you know, an employee who you know, post something real derogatory towards customers, right?

 That there was, you know, one NLRB matter involving an employee who said something along the lines of that, you know he wished, you know, the employer’s customers would choke in that you know, and used some derogatory term towards them. And, you know, the NLRB found, you know, well, you know, regardless of whether other employees would engage in this discussion, that it had nothing to do with the terms and conditions of employment. So yeah, absolutely. When, when employees, you know, make those types of comments you know, if it’s not towards the terms and conditions of employment you know, then the employer can do something about it. But you know, when, you know, there’s, there’s sometimes a gray area, right? Where you know, the NLRB has found that, you know, simply, you know, an employee who posted something online criticizing the the employer’s tax withholding calculations, and one employee commented on it you know, kind of a agreeing with it, that, that then became protected activity.

 So, you know, I think the, the concept is we want to be careful, you know, as an employer, if you are going to start when you’re going to govern, you know, online conduct yeah, you know, we’ll, we’ll discuss other issues, but as it relates to the nlra, you know, really what we’re looking at is, you know, number one, does this relate, you know, does the comment relate to terms and conditions of employment? And two, is this a group? Is it, you know, just a single employee may, you know, saying an issue because that’s not concerted activity. It only becomes concerted activity when there’s more than one individual, you know, engaging in this. So then look, you know, there might be multiple employees, you know, trashing a manager on you know, Instagram or Facebook or, or what have you. You know, even, you know, it could even be, you know, an email chain among employees where they’re just saying real horrible things about this person. But if it relates to the work and not just, you know, personal issues, right? Then it’s protect potentially, you know, protected. And while it might absolutely offend the employer that this is being stated and possibly in a public manner it’s not necessarily actionable by the employer.

VANNOY:

Let me ask this. So like my kid’s school, they have social media anti-bullying policies, right? So that would seem to me an area that it’s not talking about coworkers and them personally, not the work that they perform. It’s not even about work at all. You’re not saying good or bad things about your employer, they just happen to be coworkers. But the online bullying can be a very serious thing, right? Mm-Hmm. <affirmative>, what, what can or should an employer do there? And is it, I suspect not, but is that governed by the N L R B then?

SHENKER:

So to start with your last question, potentially, it could be it is covered by the nlrb, but when it comes to harassment and, you know, discrimination, I think what, what employers should really take away is that just because the harassing conduct is occurring online doesn’t make it any different than harassing conduct that occurs in the workplace. So, you know, an employer’s social media policy should absolutely remind employees that their, you know, EEO policies and, you know, anti, you know, sexual harassment policies apply equally to their social media conduct as they do to, you know, in person. You know, and so I think, you know, the company could have a policy that, you know, prohibits, you know, threatening or obscene social media posts and, you know, can provide examples. But yeah, I think invoking those other com, those policies and with specific provisions so that it’s not overly vague, you know, that that should get the company around, you know, any, you know, concerted activity issue under the nlra. Okay. You know, so for instance, you know, you could have a very simple statement that your social media activity is covered by all the company’s policies, including, you know, the company’s equal opportunity, equal employment opportunity, non-discrimination, anti-harassment policies and that, you know, you should not post any content on social media that violates, you know, these discrimination and harassment policies. And that that should generally, you know, be ok.

VANNOY:

So you do as an employer have the real opportunity to, to set out these, you know, these types of policies that are not about protected speech around, you know, workplace safety environment, traditional NL, N L R a kind of stuff. But you can just as, you could have a, a no bullying policy that has nothing to do with social media. Social media could reasonably be included in your anti-bullying policy, right?

SHENKER:

Absolutely. And, you know, same thing. Yep. Go ahead.

VANNOY:

Yeah. Yeah. And, and so same thing about maybe I’m thinking, I don’t know how to put it, but maybe you’re like relationships in the workplace, right? It’s like, okay young man there’s clear policies around sexual harassment that are maybe, maybe clear about what is and is not out of bounds in the office, per se. But if I’m in, if I’m connecting and I’m, and I’m making advances on this other person, cuz I’m interested in them in via social media, I mean, what’s inbounds and what’s out of bounds there,

SHENKER:

Right? Exactly. And so there, you know, some companies even employ, you know, a provision that prohibits managers from quote unquote friending subordinates on, you know, non-professional social media sites, right? As you know, that could be cons, you know, construed on, you know, as intruding on the employee’s privacy and, you know, potentially lead to those types of you know social or, you know, even going beyond social issues between, you know, a supervisor and a subordinate. You know, so

VANNOY:

Say more on that. Brian, do you have any use cases? Because I, I can totally see that it’s like I just hired a new person on my team. You know, I’m a 54 year old man, and I just hired this 25 5 year old young woman and, and I want to be able to do effective marketing. So I, I friend request her on LinkedIn that feels appropriate, feels kind of creepy if I did that. And in the, on Instagram or, or Facebook do, right. Is it your recommendations that employers set policies to prevent those? Or is it, I almost, it almost feels like you couldn’t create enough policy to cover all of the one-off nuanced edge cases that maybe it’s more principles than it is policies. I don’t know what do, what do, what are your thoughts on that?

SHENKER:

Right. I agree. I agree. It, it’s tough to say, right? Because, you know, if a manager is going to be, you know, connected with someone on LinkedIn, then you know, why not on Facebook. But, you know, you can think it, it might not just be, you know, the romantic related, you know, issues, but you know, you have a manager that becomes friends with someone on Facebook, now the manager, and, you know, really that means the company has a significant amount of personal information at its fingertips about this employee, right? Whether it, you know, discloses their sexual orientation or right. You know, a potential disability or, you know, a variety of things that could be considered protected categories. And, you know, so a company might not want that, right? You know, even if there’s not, not an intention to take action or do anything based on those,

VANNOY:

It essentially opens

SHENKER:

The door for employee to claim,

VANNOY:

Right? Yeah. I mean, give the, give the old guy benefit of the doubt. He, he just try to be friendly and be quote unquote friends. So send you a friend request, but there’s this I would Asureme that there’s this un it could be not all cases, it could be an uncomfortable feeling of responsibility to accept the friend request. Like, oh my gosh, what if I say no and decline? What are they gonna think of me? Will there be retaliation? So, but if I accept now they’re seeing all my personal life of whatever that might mean in all kind, you know, you know, everybody’s got their personal lives, but I mean, all kinds of protected class kinda kind of information that could be revealed.

SHENKER:

Yeah. And I think that’s why when it comes to, you know, supervisors and subordinates, you know, drawing the line at, you know, professional relate, you know, social media, you know, professional groups, that’s fine. But it is likely a good idea for companies to consider, you know, cutting that off for the non-professional sites because, you know, like you and I could sit here for hours thinking of all the possibilities yeah, right? That could come up, right? You know, from, from that type of knowledge or what a supervisor, you know, might comment on, you know, some, you know, photograph, things like that. Which, you know, again, because, you know, a lot of times, you know, managers and employees in general too, they understand what’s appropriate in the workplace, you know, and they, there’s this just common belief that kind, that what we do in social media and online is just something completely different. But it does relate to the workplace and, you know, inappropriate interactions online are just as inappropriate and, you know actionable as, you know, inappropriate actions, you know, taken, you know, in person.

VANNOY:

So let’s, let’s say more about that. So if I’m I’m a school teacher, I mean, it seems rather obvious, and maybe I could have social media policies that explicit me posting, you know, some picture explicit pictures of myself or access to websites where you could see explicit pictures. But what’s different about that in social media versus that school teacher, you know, maybe works at a, a, an adult establishment on the weekends and, and performs those private <laugh>. I mean, where, where, where is the line of, where is it? What is an employer’s right to say that’s not an okay thing for our employees to do, even if they’re not in the workplace? And then how does that tie back to social media?

SHENKER:

Right? So no, you said, cause

VANNOY:

I think this is where people get in trouble, right? It’s like, okay, good performer in the day job. I had no idea you were, you were a snake candler. And that creeps me out, and I don’t want you around my, I mean,

SHENKER:

Right, that

VANNOY:

Aren’t work behaviors, but

SHENKER:

Yeah, go ahead. So, yeah, I, I think that, you know, the question will often come down to, right, is there a legitimate purpose? Is there a legitimate reason, you know, for, you know, the, the company’s, you know, position on, on, on this, right? That you know, so, you know, again, if this person has some personal social media that’s unrelated to the company, they’re not posting about, you know, that these, you know, photos or whatever that is, you know, is you know them on behalf of the company, then, you know, that’s probably going beyond the bounds of what, you know, the company should be regulating on its social media. You know, I think, you know, if, if we kind of think of social media regulation by employers as just an extension of their other policies, right? Then we’re thinking, all right, is this impact, are they doing this on work time?

Right? Because we, you know, I’m sure there’s a policy in the handbook saying you can’t have other employment that interferes with, you know, your current work. You know, you know, so is it doing that? Probably not. You know, and so, you know, are you divulging company co you know, confidential information? No, no, no. You know, so we wanna look at, you know, what the these other, you know, company policies are, right? Are they doing, you know, they’re not doing it on work time. They’re not disclosing company information. They’re distancing themselves from the company. They’re not saying that anything they’re doing is on behalf of the company or that, you know, the au the company has authorized them to, you know, sell these services. You know, again, are they disparaging the company? And if they’re disparaging, is it, you know, concerted activity? You know, so again, I think that’s when it goes into balancing, you know, the employees, you know, privacy rights with, you know, what’s legitimately, you know, a business related issue.

VANNOY:

I want to get into some examples of areas where you’ve seen employers get in trouble. Cuz I, I feel like this conversation is like intellectually interesting, but there’s so much gray that I, I, I want this to be helpful for folks be, before we get to the specific examples, I, I ha my sense is that if I’m a small business owner and you say that I’m not paying my people correctly, and I’m gonna be in trouble with the Department of labor, I have a sense for what that might look like if I’m employing people with without legal documentation and ice knocks on the door. I have a feeling of what that looks like. What is, what does it look like to be in trouble with the N L R B? I don’t think most employers have a sense for, you know, what is enfor, what does enforcement look like? What, what, what kind of teeth do they really have?

SHENKER:

Yeah. So enforcement can be pretty broad at the nlrb. So, you know, in the first instance, right? I if, you know, typically an issue with a social media policy is going to come up in the context of the company having terminated an employee for violating some policy, right? So then the NLRB is looking at two things, right? One, whether that policy is lawful meaning, right? Whether it, you know, restrict, you know, has this, you know, restriction on concerted activity and whether, you know, that outweighs the, the company’s, you know, inter business interest and two, right? Whether it was proper to terminate the person. So, you know, the, the first part, just the you know, the policy, all right? So your policy is unlawful. You need to change that. You know, of course there can be some monetary component which the NL Rrb has, you know, broad discretion of.

 But you know, really where, where they’ll get you is on the termination, right? They have the ability to require an employer to reinstate an employee who’s been terminated payback wages you and, and all sorts of other, you know, connected damages that the the employee suffers. So that’s where, you know, the danger gets here that, you know, an employee is terminated or, or even disciplined, it doesn’t require a termination. Yeah. but discipline, discipline for violation of a social media policy that, you know, really, you know, involves, you know, concerted activity you know, so, you know, just, you know, for an example, right? You know, there was an NLRB case where employees posted criticisms of a manager on Facebook for not letting them leave early, right? It doesn’t even matter whether they were entitled to leave early or not, right? But the fact that multiple employees came together and were, you know, engaging in a Facebook discussion, and the companies saw that this was happening, and they decided to terminate those employees, and the NLRB said it was unlawful to do that. So now the company is either gonna be paying wages back wages to those people or having to rehire them.

VANNOY:

Yeah. So, so are there, are there, are there statutory is, are there, is there statutory accountability like X dollar fines or, you know, explicit consequences? Or is this kinda up to what the NL r b says? I mean, give a sense for how big, how big a fines are, repayments and stuff are we talking about?

SHENKER:

It’s not necessarily, you know, statutory fine. Like a lot of the other laws. The NL r b really has wide discretion, and the current N L R B general counsel has been, you know, issuing some you know, guidance and memos that kind of, you know, expand on the nlrbs, you know, ability to, you know, provide, you know, various you know, damages, imposed damages to address, you know unlawful conduct. So, yeah, I mean, look, you know, back wages can be, you know, tens of thousands, if not, you know, hundreds of thousands, you know, depending on the length of time, you know, it’s been since someone was terminated and, you know, potential, you know, interest and, you know, look, they, you know, so it, it can, it can range from very small to, to quite large. You know, oftentimes when there’s an N L R B finding against an employer, there’s a posting requirement.

 You know, so there’s notice that will, you know, will be required to, you know, be provided to, to workers. So, you know, that’s obviously, you know, a potential issue for employers. Yeah, not to mention just the expense of, you know, an NL R b proceeding, right? So you’re going to have to deal with the NL R b coming in instituting a, a proceeding, which is at the NL rrb. It’s not in court per se. There might be appeal rights, but it’s an NLRB proceeding. And I guess what I can say about that is most employers would much rather be in court than at the NL rrb. There’s, why is that limited discovery there? Well, there’s limited discovery. There are limited procedures. It pushes companies towards, you know, hearings, essentially a trial much quicker than court. And so, you know, it’s it, it can be difficult for, for an employer. It’s, it’s not necessarily the preferred forum, you know, for, for companies. And especially cause because the the board is so politically driven especially as the board is constituted now with a majority, you know, democrats, you know, enforcement will ramp up and be expanded when this is the case. You know, so that, that’s what we tend to see.

VANNOY:

So it, it does have all the legal teeth of, if you get into a, a wage and hour hearing by your state’s Department of Labor you might not be in a court, but this has the same teeth as that, right? You don’t get to say, oh, that’s not a law, that’s just the, just, that’s just the board and they’re gonna, it’s a political organization. Screw them. I’m not gonna show up. I mean, all the same consequences of whether you show up, whether you participate in whatever decisions they make. Totally. Yeah.

SHENKER:

Right? Absolutely. Yeah. It’s a legitimate, you know, government agency. They can enforce, you know, their, their decisions. It is, you know, I I’m sure any of our listeners who, you know, have union workforces are quite familiar with the NL r b yeah. And prob may know from experience you know, that, that they’re to be taken seriously for, for employers in the private, in, you know, in, in, in private areas where, you know, there is no union right there, there may be this perception that, you know, the NLRB doesn’t, you know, apply to me if they come knocking, it’s, you know, no big deal because I don’t have a union. But that’s not the case. And, and really this section seven protected concerted activity is really, you know, is really the nlrbs teeth to get into private employers, right?

Where when you have workers, you know, discussing, you know, terms and conditions of employment, whether it’s in person or on social media, you know, there needs to be special care taken if you’re considering discipline for something related to that, because you know, that that is a protected, right, even for employees of private employers that are non-union, that they can discuss and look, sometimes it’s, you know, in disparaging ways, it’s not always, you know, gonna look so nice. And that’s all often where the issues, you know, come up from where, you know, the, the employees are saying some real, you know, negative things online, right? Where they might be talking about, you know, poor work environment calling out managers. But if there are, you know, multiple employees engaging in this, and it’s something that they might or, you know, have complaints in management about in the past, then, you know, it’s not just their own personal gripe. It becomes something about, you know, conditions of employment and its concerted activity and potentially unlawful if, if you’re going to take action against the employee because of that.

VANNOY:

Brian, I, I, I’m Asureming where this shows up most of the time the, the, the enforcement aspect that is, it’s not like there are an L R B police knocking on doors. But this is an employee probably most commonly the result of some type of retaliation. Employee puts something online employer takes some action, termination suspension, some disciplinary thing or just even if what they, even if they act reacted re reasonably then employee says, Nope, you, I have the right, you don’t get to tell me what to do. This is protected. And they go get a lawyer, and then the person on the other side of the aisle from you, your, their attorney, they’re the ones who know how to navigate the what is required by N L R A in engage the N L R B to take action. That’s probably the path this takes. Right?

SHENKER:

Exactly. So one of the things that, that we see is, you know, the, the employee might go to the, you know, the attorney first and, you know, maybe, maybe the factual scenario provides, you know, for a sexual harassment claim, but that it also implicates the N L R A that we see, you know, dually filed matters, you know, from, you know, where, you know, there might be a state or federal claim for discrimination. And simultaneously that employee, you know, will file a charge at the N L R B under for an unfair labor practice related to, you know section seven, you know, concerted activities. So, you know, while their attorney won’t represent them at the board, right, at the Labor Board, it’s the, you know, the NLRB has their own counsel that will, you know, handle matters on, on behalf of the, these employees.

 But yeah, it’s not uncommon to see that, especially when it comes to retaliation. And sometimes that can even be right. We, we see, you know, wage and hour cases, right? Where there’s, you know, let’s say several, you know, four or five employees that file a wage and hour complaint, you know, for unpaid overtime. And, you know, they also claim that a manager, you know, terminated one or two of them because they, you know, they got together and complained about you know, tips being, you know, stolen from them or or not being paid that overtime. And so you might also have a, you know, wage and hour retaliation claim, but if there were multiple people coming together about these issues, you also have, you know, a potential, you know, N L R B charge for the employer. And they will, you know, the N L R B will go after it, just as zealously as the private attorney will go after the wage and hour component. And then that can be real burdensome when, when a company has to deal with, you know, multiple claims on, in two different forums. Especially since, you know, as I said, right, the NLRB matter is probably gonna move faster than something in court.

VANNOY:

So I want, I want go down a different rabbit hole for just a second, just cuz it relates to social media. I don’t think this is necessarily, and maybe it is, I don’t think it’s necessarily an n lra a oriented what, what can employers require or are not allowed to require? So we, we talked a lot about prohibiting as an employer, you can’t prohibit this, you can’t prohibit that. You’ve given lots of examples I think are helpful. But let’s say I want my my employees to, to be an extension of my sales and marketing function. And if I’m having a, an open house or I’m promoting a, a a a web show like this, may, can I require my employees to promote this and post this on their LinkedIn, their Facebook, their, their, et cetera? Maybe, you know, I can, maybe, can I do it on LinkedIn? Cuz it’s business platform versus I can’t on a, on a more personal, where, where are the lines there,

SHENKER:

Right? So, no, that, that’s a great point. And yeah, the law in this, that area is developing, I think, you know, generally it’s, it’s allowable to I think, you know ask employees to do that, you know, again, if it’s a personal account, so even if it’s their linked account LinkedIn account, and that’s professional, right? That, that’s a professional personal account. So, you know, it, it might be something, you know, that you request employees do, but again, we, we could run into issues of requiring them. And this also gets into another tangent, which is quite interesting, which is, you know, so it’s absolutely fine to, you know, have a company account, right? So you could create, you know, whatever, it might be a company account on, you know, Facebook or LinkedIn and, you know, your marketing employee is running, you know, the Facebook account for for your company.

And so, right, that’s the company’s account. You can require them to post on that. That’s part of their job. But an issue that many employers overlook is ownership of that account, right? So we, we ask our marketing director create us a, you know, LinkedIn and Facebook account for, for the company, all right? That that director has the account login and password information, they’ve created it and all is good while they’re working, when, when they, you know, quit or when they’re fired, what if they take that, that login right? Now they’re saying, well, I created it, right? It was, you know, my, you know, it’s my work. But the company’s saying, well, you have our company context, right? We’re, we’re losing the account. The people are looking to us, and you, you’re connected with all these people, we need to know who they are. You know, that may very well end on the employer side, but I, I think, you know, the law is really developing and there’s, there’s no real clear answer on that. But what employers can do is say, you know, if you’re using the company account for marketing that is owned by the employer, and you know, you can include language to make that very clear. Yeah. So, you know, there are little intricacies like that, but yeah. Requiring people to post on their personal accounts you know, might not always, you know, be the, be the best thing.

VANNOY:

Well, and the, and then, and the reality is some obviously more business oriented linked LinkedIn versus Facebook or TikTok being personal, but they’re all personal. I mean, it’s your personal Google account that you have to, and you have, I mean, you gotta have a Google account to be able to set up a Google AdWords to run ad campaigns. You gotta have a Facebook account to set up a Facebook business page, right? You gotta have a LinkedIn, a personal account to set up a a a a LinkedIn company page. So it, they, they do get intertwined.

SHENKER:

Yeah. And, and another related issue is, you know, that if you do have employees who are posting, you know, if it’s, you know, testimonials or endorsements about the company’s services, that is potentially covered by the the ftc, the Federal Trade Commission and the FTC has guidelines regarding individuals who give, you know, endorsements about a company’s services or products that they must identify their relationship to the company mm-hmm. <Affirmative>. So, you know, an employer who might, you know, so if employees are going to be doing that you know, the company should recommend that if an employee posts about the company’s, you know, products or services that it should, that the employee states, you know, they are a, an employee of the company and that, you know, their views are not necessarily those of, of the company. So yeah, there, there are, you know, other laws that potentially, you know, come in and, and dictate, you know, what happens in that scenario when, when the employees are using their accounts for, for business related matters.

VANNOY:

Got it. So this is a hard one to this topic today, Brian, cuz I feel like, I feel like you gave a ton of really specific examples. And my sense is that anybody who watched today’s show still might be unclear of where the boundaries are when they set up a policy. Can, can you try to kind of package this up to, to, to wrap the topic, here’s what should you or shouldn’t you have a a social media policy? And if you do, here’s the, here’s what you shouldn’t do. The top three, four things. Here’s the yeah. Top three, four things that you should include in it.

SHENKER:

Absolutely. So with respect to a social media policy, definitely have one, it should be in the handbook, may very well be good guidance to have a separate standalone policy so that employees are reminded of it. What should go into it? Again, a definition of social media. We wanna address that. Reiterate that other company policies like EEO policies apply to online conduct. We wanna address work usage, right? Whether or not employees are permitted to use social media while at work, to what extent you want to include in the social media policy protections for the company’s intellectual property and confidential information, right? And these are probably things that are in your handbook already, but you want to in include those in the policy, right? And, you know, I, it is gonna address, you know, recording of, you know, non-public, you know you know, proprietary things, right?

If you build rockets, you don’t want employees taking videos and showing how you make those rockets, right? You know, so things like that we wanna make sure they’re provisions in the policy that distance the company from the employee meaning that you as the company cannot control all the things your employees will say and do online. And, you know, therefore you wanna, you know, take, you know, put as much you as you can in that policy that reduces the risk that the company will be associated with, you know, certain bad behavior online. So, you know, for instance, you know, that means, you know, written authorization is required to speak on behalf of the company. I think that, you know, again, I just went through, you know, endorsements of pol of company, you know, services and then again, we discussed earlier, the policy should consider, you know, privacy rights, right?

Whether, you know, supervisors should be friending subordinates. And, you know, again, one of the big things again is, you know, the section seven, you know, nlra rights. So we wanna make sure that we’re drawing attention in the policy that and, and again, I advised this go in every social media policy, you know, a savings clause an nlra savings clause essentially says that you know, nothing in this policy is intended to you know, limit protected concerted activity. And you know, it, it’s exactly what it sounds like. It, it’s, you know, in case there’s any you know, you know, lack of clarity, you know, the company is explaining that it’s not intended to and inhibit those rights. And then I think the last thing would be that for companies that use intra company social media, right?

That vary. There are various platforms and, you know, it may or may not really be social media, but it could be messaging that yeah, you know, companies can restrict that a bit more, what can be used. But again, it shouldn’t just, you know, be one of those things that goes without saying, you know, take the opportunity to put, you know, address all these concerns in your policy. Because without it, you know, employees will do whatever they feel like and hey, they still might, but if you have an appropriate policy, you know, then you’ll be in a better place if you need to take action against employees for engaging in some type of inappropriate, you know, social media conduct.

VANNOY:

Yeah, that, that was, that was a really good recap, Brad. Thank you. I, I think as in as in so many things, HR laws are kind of black and white but for employers, staying compliant is, is less. So there’s no law that requires a job description. There’s no, no law that requires a social media policy. There there’s no law that says you have to have a formal interview process. But all those things are best practices that help you not only find and retain the best talent and get the most out of a, a highly productive team. They’re also the things that help keep you out of trouble in and stay compliant. So I think this is one of those areas that easy to dismiss, easy to overlook, and think the, the, we, we don’t have to do anything here, but good compliance starts with proactive communication. Proactive communication in a consistent way looks an awful lot like a policy. So I, I think this is a, what felt like a bit of a nebulous topic as we talked for an hour. I think I, I think you brought it home and, and at the end of the day, you really do need policies, but you gotta understand what the laws are to know what you’re protecting against and for in these policies. Anything else you’d want to add in, in closing here, Brian?

SHENKER:

No, I, I think you’re exactly right. And, and look, this is a new area, you know, for many employers, right? But you know, social media, whether you know your company, you know, actively has social media or if you’re just addressing, you know, employees social media, I think it’s very important because it is something that, you know, as we talked at the beginning, there are risks. And if for no other, you know, workplace risk other than, you know, social media can impact, you know, your, your business’s brand and how the public perceives it, no matter, you know, if you’re a small or large company and having a policy in place that’s distributed to employees that they understand, that provides examples. Because as you said, you know, there’s a lot of stuff here to unpack. So a lot of times, examples can really help employees, you know, understand what they should and shouldn’t be doing and helps the company, you know, avoid, you know, potential violations of the law, you know, by narrowly applying its policies. But, you know, it, it all can be really helpful in a number of ways to accompany to, to address these issues in a policy. Yeah.

VANNOY:

Yeah. Very good. Brian, I always enjoyed talking to you. Thanks to you and thanks for everybody else for joining us today. Until next week’s show