Landmine Or Goldmine? The Role Of Social Media In Employment Law

Editor: Please tell us about your professional background.

Brody: I got my bachelor’s degree from the University of Pennsylvania in 1972 and my law degree from Northwestern in 1975. After three years at a boutique litigation firm in Chicago, I moved to Los Angeles and joined Proskauer in May of 1981. It has been an extraordinary and remarkably rewarding 30 years.

My area of specialization is labor and employment law. One of the interesting things about employment law is that any big trend currently happening in society will quickly make its way into the workplace. Today that trend happens to be social media, which has exploded in the last few years.

Editor: Social media seems to bring up all kinds of new legal issues.

Brody: Because social media is a relatively new phenomenon, courts and agencies must grapple with the issue of applying the neutral principles of a particular law to social media. Of course, the principles are not remarkably different from those governing other forms of communication, and there is already a large body of law on whether and to what extent employees may or may not communicate in certain ways at certain times and in certain places; a counterpart body of law regulates employers. Yet applying these laws to social media can be tricky. Privacy and consent acquire new meaning in a social media context. As a result, employers and HR professionals who deal with these issues should be sufficiently familiar themselves with social media or at least have access to knowledgeable counsel.

Editor: I understand Proskauer recently released its report on social media in the workplace. Did any of the findings surprise you?

Brody: I was surprised at the high level of disciplining employees: 40 percent of employers had to deal with employees who misused social networks, and a third had taken disciplinary action. I extrapolate from this that employers are, on a widespread basis, accessing social media websites and then reacting to what they see. Both of these points raise potential problems. What access do employers have to employee social media, and how did they obtain that access? And then, what is it they saw that led them to discipline the employees, and should they have done so?

It’s one thing to visit a public Facebook or LinkedIn page – as many of them do – but it’s another to access one with stringent privacy settings. Certainly employers must be confident that they have the right to access an employee’s social media website.

Then the question becomes, can you act on what you see? There is a divide on that issue again, depending on the content of the communication. The disparagement of employers has been a major topic of litigation. The most significant forum for this thus far has been the National Labor Relations Board (NLRB): under the National Labor Relations Act (NLRA) employers are prohibited from attempting to deter or discipline employees from engaging in what are considered to be protected “concerted activity,” which includes an employee’s discussion of wages, hours or other terms and conditions of employment. There have been a number of instances where the NLRB has stated that the criticism of employers by employees is protected concerted activity, and any employer who disciplines an employee for this activity will be found to have engaged in an unfair labor practice. Many non-union employers forget that the NLRA applies to them as well. The NLRB has become very aggressive on this issue, and I have read that in each of the over 30 regions nationwide there is a complaint involving employer and/or employee statements and social media.

Editor: What about communications on a social website that might be deemed to be harassing or threatening?

Brody: Employers under federal and most state laws are charged with the obligation of taking reasonable steps to prevent sexual and other protected forms of harassment. The cases are disparate, and while there is no bright-line test, I can say that many of the cases turn on the level to which the employer is involved in the alleged harassing conduct. This includes whether the harassing conduct took place at the employer’s place of business (whether real or virtual) or on equipment it owns. If a company has some kind of intranet, company bulletin board or its own Facebook page and employees post harassing comments, the employer must act to prevent the harassment. On the other hand, for communications that take place outside of work on employee’s own Facebook pages, so far the courts have addressed these as purely private conversations, assuming that the harassing conduct is between equals.

If, however, a supervisor is making harassing contact via social media to a subordinate, the traditional sexual harassment analysis and regulations apply.

In between those poles are more difficult instances; for example, an employer permits employees to access social media from the workplace, and it is  alleged that one employee is harassing another employee through his or her postings. One court found that an employer took appropriate action when it cut off access to social media at the workplace upon receiving a complaint about harassment.

Editor: What laws restrict an employer’s access to an employee’s social media page?

Brody: The Stored Communications Act and the Wiretap Act prohibit the unauthorized interception of certain electronic communications. Beyond this, many of the laws enacted pre-social media can be translated directly to social media. The Americans with Disabilities Act (ADA) and the Genetic Information Act (GINA) in a pre-social-media context regulated what information an employer may obtain and use in making employment decisions. I mentioned the NLRA earlier, and there is also the Federal Credit Reporting Act and the state analogs, which restrict what an employer may or may not ask of employees. Finally, Title VII of the State Fair Employment Statutes impose restrictions on what information an employer may obtain and use. All of these principles can be applied fully to social media.

The most common use of employers accessing social media has been in pre-employment settings. We’ve all heard stories about people who boast of reckless behavior on their public pages and employers choosing not to hire them as a result.

Editor: What about employers who “friend” employees?

Brody: This issue has only been addressed preliminarily by the courts. There’s a parallel here to the common scenario of sexual harassment, in which one party claims the relationship was consensual while the other party claims it was more or less coerced. An employee being asked to friend a supervisor may likewise feel coerced, or at least later claim that he or she had been coerced. I think employers need to be very careful about friending an employee; I would ask an employer what information can be gained from a Facebook page that can’t be gained elsewhere.

Whatever principles and policies an employer has about encouraging or discouraging off-work social relations between subordinates and rank-and-file employees should be followed in the social media context. Many employers restrict – or at least discourage – a high level of socialization between supervisors and subordinates. My own experience tells me that employers and supervisors are typically better served by keeping relationships with subordinates professional only. However, after practicing labor law for 35 years I’ve come to understand that is often difficult for people to separate the personal and the professional. Nonetheless, employers and employees must understand that whatever policies are in place regarding fraternization outside of work apply equally to socializing via social media. Supervisors especially should be very circumspect about posting; to that end, social media training should be rolled into any training supervisors receive.

Editor: How may a defense use social media in the e-discovery phase?

Brody: Increasingly, employers are being offensive in their discovery against former employee plaintiffs in inquiring after a plaintiff’s social media use. I have found social media to be a very important source of information, particularly as it may relate to issues of damage. Many plaintiffs in employment litigations claim they’ve suffered great emotional distress or even been completely disabled as a consequence of an employer’s alleged misconduct or neglect. But sometimes what you find on the plaintiff’s Facebook page is evidence that he or she is engaging in all sorts of leisure activities that call into question the severity and extent of the injury.

Social media is very discoverable, but it is subject to the traditional discovery principles, primarily relevance and privilege. I anticipate that privacy will become a highly litigated issue. In some instances, the Facebook page of a plaintiff is completely unprotected, in which case it’s easy for the employer to discover. But suppose the page is blocked to everyone but friends. The employer is still entitled to push the issue in discovery and try to force the plaintiff to produce his or her postings. Counsel for the employer may legitimately ask the plaintiff’s counsel, “What expectation of privacy can there be when the plaintiff is posting information to, say, 500 friends, who now have access to that information and they can disseminate it as they choose?” It reminds me of a recent case in which the plaintiff claimed that certain statements she made at a party should be deemed private. Our argument was that while it was true it was a party of only friends, there were no restrictions on the party guests’ use of information theyacquired. Why shouldn’t such information be discoverable in litigation? I think employers should push aggressively for social media discovery because often the effort is rewarded.

Editor: Please tell us how deposition of plaintiffs and witnesses may be leveraged by the defense around discoverable social media.

Brody: First, to the extent that defense counsel has acquired information from social media, such information can be authenticated, which is particularly advisable for use at trial or on a motion for summary judgment.

Second, in cases where plaintiff’s social media has been blocked, the deposition is the best and maybe only opportunity to ask the plaintiff about his or her social media habits. As I stated earlier, typically what I’m after is information on the plaintiff’s claim to physical suffering or emotional distress, not postings about my client. Defense discovery inquiries should not be limited to statements about the employer or the litigation, but to what kind of life the plaintiff has been leading post discharge or allegedly wrongful conduct.

Editor: Any closing thoughts?

Brody: We’re at the very beginning of this social media age, and employers and their attorneys need to remain alert to all of these issues, including new ones as they arise. Employers must make informed, sensible decisions about whether and to what extent they will allow employees to access and use social media during the work day, and whether and to what extent supervisors should be allowed to fraternize with employees off work, which includes going to their Facebook or other social media pages.

As litigators we need to be aware of the potential for social media to provide information that can help us more accurately evaluate the claim that is being made by the plaintiff. We need to stay up with social trends and understand how they affect the workplace and, consequently, employment litigation.



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