Deal Diary

Anybody over the age of 40 can recall a time when news was delivered by television, radio and newspapers. Two things that each of those mediums have in common are a substantial capital investment and an existential desire for editorial integrity. The equation was simple. Income was generated primarily through advertising revenue. Advertisers would purchase space in a newspaper or commercial time on a radio station or television network. The larger the number of readers, listeners or viewers—the more advertisers were willing to pay for access to that audience.

The corporate culture of a company starts at the top, with the board of directors. While the board does not manage the operations of a company, it advises the management team and helps set strategy and plans for the company. The directors should be attuned not only to all aspects of a company’s business, but also to its people, values and reputation.

After the employment relationship is terminated, employers should be aware of former employees’ social media activity to ensure continued compliance with any post-employment obligations, including nondisclosure of proprietary or confidential information.  For example, if a former employee is subject to a nonsolicit of employees, that former employee may be within his or her rights to take to social media to tout how great their new employer is or how much he or she enjoys their new job, but taking that message one step further and encouraging his or her former employer’s employees to join them at the new employer would likely be an actionable breach of the nonsolicit. 

As discussed previously (see Best Practices in Social Media for Employers Part 2), adopting a National Labor Relations Act (NLRA)-compliant social media policy is the first step in ensuring that the policy can be enforced.  However, employers should also be aware of the potential risks associated with disciplining employees for violations of such a policy.

If an employee is disciplined or terminated for misconduct on social media in violation of an employer’s policy, the National Labor Relations Board (NLRB or the “Board”) is one of the few places the employee can turn to for recourse, since the employee’s termination is unlikely to fall under any of the more commonly known employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act or the Fair Labor Standards Act.  In recent years, employees, including nonunion employees, that have been terminated for violating social media policies have filed unfair labor practice charges with the NLRB against their employers in the hope of obtaining damages or reinstatement of their employment.

In addition to the risks associated with employers’ use of social media as related to the recruiting and the hiring process (previously discussed here), employers should also be aware of potential pitfalls associated with restricting or monitoring employees’ use of social media.

Some of the biggest issues and risks related to restricting and monitoring employees’ use of social media arise under the National Labor Relations Act (NLRA).  The NLRA is a federal law that grants employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of . . . other mutual aid or protection.”  29 U.S.C. § 157.  Concerted activity includes allowing employees to discuss their terms and conditions of employment.

As the use and reach of social media continues to increase and evolve, employers should be aware of the latest risks and issues to consider during the recruiting and hiring process.

The results of an August 2014 online survey conducted by Jobvite show the following:

• Ninety-three percent of recruiters will review a candidate’s social media profile before making a hiring decision.
• Seventy-three percent of recruiters have hired a candidate through social media.
• Fifty-five percent of recruiters have reconsidered a candidate based on their social media profile.