In a March 8, 2019 post titled “New California laws may require review of social media policies,” we explored how a host of new California laws would require a close review and revision of corporate social media policies.
That post discussed the role social media policies play in helping employers sidestep legal landmines by preventing wage and hour violations, unauthorized disclosure of the company’s trade secrets and other confidential information, violations of the Federal Trade Commission Act arising from an employee’s promotion of company products, infringement of third party intellectual property rights, employee harassment, and privacy violations.
Equally important, if not more so, is the enforcement of those policies. Simply put, even an airtight social media policy may not protect a company from liability for employee violations of that policy. Two recent cases in California federal district courts illustrate some of these potential pitfalls.In a recent case in California federal district court, employees brought a class action against their employer seeking recovery of unpaid wages and derivative penalties. Two classes were certified, one of which included all hourly employees. Several of these hourly employees testified that they routinely engaged in personal activities while waiting to clock in, including among others, checking social media in the break room.
A few employees also testified to being generally unaware of restrictions on their conduct while waiting to clock in. The former employees moved for summary judgment on the grounds that they should have been paid for their time spent in the break room waiting for their shift to begin—despite spending that time scrolling through social media. Although the court denied the motion, it noted that an employee could be deemed under the control of an employer as soon as they cross onto the employer’s premises to clock in.
This could even include time spent on the premises using social media, or doing other personal activities. This case shows how vital it is for employers to ensure their employees are not using social or doing other personal activities on company time or while on company property. These policies must be clear, but supervisors must also be trained to effectively enforce them.
In the second case, employees sued their former employer in California state court for harassment, discrimination, and retaliation.
One of the plaintiffs alleged that his superior posted a harassing comment on a social media website. This comment was posted while the plaintiff was on medical leave for anxiety and depression, and was allegedly related to these medical issues.
After being terminated, the plaintiff claimed that his termination was retaliatory, related to the harassment, and harassing in its own right. He also claimed that this conduct was approved or ratified by the company.
Although this case was disposed of on other grounds, it illustrates the pitfalls of poor enforcement of company social media policies. Companies must provide extensive training to its employees on corporate social media policies, including training to supervisors and managers on how to enforce those policies.
These cases highlight a few of the myriad risks social media poses to employers. Employers must take care to formulate thorough social media policies, provide training to its employees and managers on the content of those policies, and ensure proper enforcement of those policies.
