TBA Law Blog

Posted by: Christy Gibson on May 14, 2013

By:  Kate Scarbrough

     As lawyers and as employers, we are constantly attempting to keep up with the rapidly-evolving changes in social media.  The following are some recent statistics, news items, and legal decisions affecting employees’ use (or abuse) of social media, and what they mean to us as lawyers and as employers.   

     A recent study suggests that 64% of employees visit non-work internet sites every day, with the percentage soaring to 73% of employees between 18 and 35 reporting spending time inappropriately surfing the net daily.[1]  Not surprisingly, the most frequently-used website is Facebook.[2]   

     How do we deal with employees’ online escapades?  Sometimes, it wins us cases.  Sometimes, it lands us in hot water.  And sometimes, our social media policies – written in an effort to help us harness that information to win us cases, and to avoid landing us in hot water – in and of themselves are a problem.  Consider the following.

     In a recent case, a nurse took a leave of absence from work, claiming coverage under the Family Medical Leave Act (“FMLA”) for a back condition.[3]  According to her Facebook posts, complete with photos, she used her new-found freedom to enjoy a vacation in sunny Mexico and engage in other activities that were clearly outside of her medical restrictions.  Several of her Facebook friends included her co-workers, who complained to her supervisors about the apparent misuse of FMLA leave.  She returned to work, complained that no one had sent her a get-well card during her “convalescence,” and in response to questioning, claimed that she used a wheel chair while she was in Mexico.  Of course, she was caught in these lies and ultimately, her employment was terminated.  She sued her employer under the FMLA.  Relying upon the employee’s own social media posts, and the employer’s honest belief and reliance upon particularized facts at the time the termination decision was made, the employer won summary judgment. 

     And consider the dilemma in which Applebee’s recently found itself.  A disgruntled patron scratched out an “autograt” tip (an automatic add-on some restaurants add for parties of a certain size) and wrote on the receipt, “I give God 10% - why should I give you 18?” and signed her name as “Pastor Alois Bell.”[4]  The stiffed waitress showed the receipt to a co-worker.  The co-worker photographed the receipt and posted it to a social media site along with the comment that she was sure “God was going to pay for her rent and groceries.”  Everyone loves a good “clergy-gone-bad” story, and the photo went viral, garnering thousands and thousands of comments.  The pastor got wind of the kerfuffle and complained to Applebee’s, saying the waitress ruined her reputation and demanding that the waitress be fired.  Applebee’s gave in to this demand and fired the receipt-posting waitress.  Applebee’s quickly found itself in the midst of a firestorm of online criticism for its actions.  The pastor eventually admitted her actions amounted to a “lapse in judgment,” but it seems to be Applebee’s judgment that continues to be questioned even months later.

     And what about the National Labor Relations Act (“NLRA”), enacted in the bygone year of 1935?  The NLRA can provide us with significant guidance regarding social media, right?  According to the National Labor Relations Board (“NLRB”), the answer is yes.  The NLRB is intervening in the social media scene in a big way, in union and non-union workplaces.[5]  In a series of recent decisions, the Board has weighed in on whether certain employee speech on Facebook and similar social sites is protected by the NLRA, and whether employer’s social media policies violate the Act.  Some of the decisions are surprising, such as striking down bans on “disrespectful” comments as overly broad and potentially discouraging workers from exercising their right to communicate.  Other decisions are just downright confusing, appearing to apply different standards.  Online employee “gripes” are one category of cases most difficult to interpret, with Board decisions seemingly all over the place.  In fairness, the Board has also emphatically ruled that it’s not OK for a reporter to post a message wishing people would die to enliven a slow news day.  Of course, most cases are closer calls, and the recent decisions have done little to provide clear guidance in this emerging area.    

     With all of this in mind, how are we as lawyers and employers supposed to cope with social media and the workforce?  First, we should be informed and be aware of the evolving landscape, as illustrated above.  The vacationing nurse teaches us that social media can provide a wealth of information about our employees, if only we know how to use it.  Our friends at Applebee’s (unintentionally) reinforced the powerful reach and scope of social media, and reminds us the viral dissemination of information doesn’t always occur in positive ways.  Finally, the ever-expanding scope of the NLRB’s decisions are a concern in and of themselves, and they may foreshadow increasing regulation from unexpected sources. 

     So, how do we advise our clients?  Fortunately, the answer is not nearly as complicated as, say, attempting to predict the NLRB’s next move.  Although the internet and social media are rapidly evolving and changing the world in which we live and work, we need only continue to give our clients accurate and relevant information, and continue to help them make the best policies and decisions that fit their workplace and their needs.  Now, what’s not to “like” about that?

[1] Warner, Russ.  “Employees Really Do Waste Time at Work.” Forbes.com.  Forbes, 17 July 2012.  Web.  3 May 2013. 

[2] Id.

[3] Facts in this paragraph taken from the district court’s decision regarding summary judgment, found at:  Lineberry v. Richards, et al., No. 11-13752, 2013 WL 438689 (E.D. Mich. Feb. 5, 2013).

[4] Erb, Kelly Phillips.  “Pastor Who Refused To Pay Applebee’s Service Charge Becomes Unwitting Poster Child For Server Pay and Tax Issues.”  Forbes.com.  Forbes, 1 February 2013.  Web.  3 May 2013.

[5] Greenhouse, Steven.  “Even if It Enrages Your Boss, Social Net Speech Is Protected.”  Nytimes.com.  21 January 2013.  Web.  3 May 2013.