It seems inevitable in today’s digital world that employers will sometimes discover that an employee has posted inappropriate statements or other inappropriate content on social media. The employer must then decide how to respond. Although the desired level of discipline will vary depending on the severity of the content, some statements are so egregious that they may call an employee’s character or fitness into question such that termination is the appropriate response. But if an employee is terminated for inappropriate conduct on social media, does the employer then open itself up to an additional risk of litigation?
NLRB issues new guidance on employer policies
In the wake of the National Labor Relations Board’s (NLRB) decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB has recently issued new guidance regarding employee handbook rules. The NLRB’s guidance can be found here.
In Boeing, the Board overturned its old standard, under which an employer rule violated the National Labor Relations Act (NLRA) if a worker could “reasonably construe” it to interfere with the right to engage in protected concerted activity. Under the new standard adopted by the Board, an employer rule will only violate the NLRA if it would be reasonably interpreted to interfere with workers’ NLRA rights considering the balance between (A) the nature and extent of the rule’s potential impact on protected rights and (B) the employer’s legitimate justifications for the rule.
The #MeToo Movement: When Employees Take Their Complaints to Social Media
As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. Although its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other misconduct on social media and must grapple with the implications of publicly aired grievances.
The Computer Fraud and Abuse Act: Considerations for Employers
Although the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030) is a federal statute that primarily protects against unauthorized computer access such as hacking, it can also impact employers in the realm of social media. Originally enacted in 1984, CFAA makes it illegal to access knowingly or intentionally a “protected computer” without authorization or in excess of authorized access. Protected computers are defined broadly to include all computers that are used in or affect interstate commerce, and thus include most employer-owned computer systems. Violations of CFAA may result in criminal penalties, and CFAA also permits individuals (and employers) to bring a civil action for damages or injunctive relief. Employees rarely sue their employers under CFAA, but employers should nonetheless consider CFAA in formulating their social media policies and determining how they will regulate employee use of social media.