April 20, 2014

Social Media & Emerging Employer Issues: Are You Protected?

On June 13, 2013, Business First of Louisville and McBrayer hosted the second annual Social Media Seminar. The seminar's precedent, Social Media: Strategy and Implementation, was offered in 2012 and was hugely successful. This year's proved to be no different. Presented by Amy D. Cubbage and Cynthia L. Effinger, the seminar focused on emerging social media issues for employers. If you missed it, you missed out! But don't worry, a seminar recap is below and for a copy of the PowerPoint slides click here

McBrayer: If a business has been designated an entity that must comply with HIPAA, what is the risk of employees using social media?

Cubbage: Employers are generally liable for the acts of their employees which are inconsistent with HIPAA data privacy and security rules. As employees' use of social networking sites increase, so does the possibility of a privacy or security breach. An employee may be violating HIPAA laws simply by posting something about their workday that is seemingly innocent. For instance, a nurse's Facebook status that says, "Long day, been dealing with a cranky old man just admitted into the ER" could be considered a HIPAA violation and expose an employer to sanctions and fines.


McBrayer: Should businesses avoid using social media so that they will not become the target of social media defamation?

Effinger: In this day and age it is hard, if not impossible, for a business to be successful without some use of social media. There is always the risk that someone will make negative comments about an individual or a business online, especially when anonymity is an option. Employers need to know the difference between negativity and true defamation. Negative comments or reviews are allowed, perhaps even encouraged, on some websites. If a statement is truly defamatory, however, then a business should make efforts to have the commentary reported and removed. The first step should always be to ask the internet service provider for a retraction of the comment, but legal action may sometimes be required.


McBrayer: When does a negative statement cross the line and become defamation?

Effinger: It is not always easy to tell. First, a statement must be false. If it is true, no matter how damaging, it is not defamation. The same goes for personal opinions. Second, the statement must cause some kind of injury to an individual or business, such as by negatively impacting a business's sales, to be defamation.


McBrayer: Can employers ever prevent employees from "speaking" on social media?

Effinger: Employers should always have social media policies in place that employees read, sign, and abide by. While it is never really possible to prevent employees from saying what they wish on social media sites, some of their speech may not be protected by the First Amendment's freedom of speech clause.


McBrayer: What constitutes "speech" on the internet? Is "liking" a group on Facebook speech? How about posting a YouTube video?

Effinger: This is a problem that courts and governmental employment agencies, like the National Labor Relations Board, are just starting to encounter. There is no bright-line rule for what constitutes "speech," but it is safe to say that anything an employee does online that is somehow communicated to others (even "liking" a group or posting a video) qualifies.


McBrayer: Since a private employer is not bound by the First Amendment, can they terminate employees for social media actions with no repercussions?

Effinger: No! In fact, it could be argued that private employees are afforded more protection for what they say online than public employees. While a private employer has no constitutional duty to allow free speech, the employer is subject to state and federal laws that may prevent them from disciplining an employee's conduct. As a general rule, private employees have the right to communicate in a "concerted manner" with respect to "terms and conditions" of their employment. Such communication is protected regardless of whether it occurs around the water cooler or, let's say, on Twitter.


McBrayer: It seems like the best policy would be for employers to prohibit employees from discussing the company in any negative manner. Is this acceptable?

Effinger: It is crucial for companies to have social media policies and procedures, but crafting them appropriately can be tricky. There have been several instances where the National Labor Relations Board has reviewed a company's policy and found its overly broad restrictions or blanket prohibitions illegal. Even giant corporations like General Motors and Target have come under scrutiny for their social media policies and been urged to rewrite them so employees are given more leeway.


McBrayer: Is social media a company asset?

Cubbage: Yes! Take a moment to consider all of the "followers", "fans", or "connections" that your business may have through its social media accounts. These accounts provide a way to constantly interact with and engage clients and customers. Courts have recently dealt with cases where a company has filed suit after a rogue employee stole a business account in some manner, for instance by refusing to turn over an account password. Accounts are "assets," even if not tangible property.


McBrayer: What is the best way for an employer to protect their social media accounts?

Cubbage: Social media accounts should first be addressed in a company's operating agreement. Who gets the accounts in the event the company splits? There are additional steps every employer should take, such as including a provision in social media policies that all accounts are property of the business. Also, there should always be more than one person with account information, but never more than a few. Treat social media passwords like any other confidential business information - they should only be distributed on a "need to know" basis.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Amy D. Cubbage, Commercial Litigation Attorney, McBrayer Law Firm
Of Counsel

Amy D. Cubbage practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and...


About the Author

Cynthia L. Effinger, Employment Attorney, McBrayer Law Firm

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation.


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