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Issue link: http://beautystorebusiness.epubxp.com/i/188385
Beauty & The Law you out of the company account. If an independent contractor updates your social media, then your contract should require the contractor to turn over all passwords to you and sign in using an email address that your business controls. EMPLOYEES' PERSONAL POSTS It can't be a surprise that people have gotten fired when they've used their personal social-media accounts to talk about their jobs. But some speech is protected. Employees can't legally be fired for certain things they say. The National Labor Relations Act is a federal law that governs employees' actions to unionize and protect their general welfare. It addresses employees' rights to file grievances, protests and "other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The law is enforced by the National Labor Relations Board. The NLRB has authority over retailers with gross annual sales of $500,000 or more, and most nonretail businesses that buy or sell $50,000 or more of goods or services across state lines. When Hispanics United of Buffalo fired five employees for harassment, the NLRB found the not-for-profit social services corporation violated the law. One employee, Lydia Cruz-Moore, had criticized her co-workers—including Marianna ColeRivera—for not giving timely and adequate assistance to victims of domestic violence. Cruz-Moore sent Cole-Rivera a text message saying that she was going to bring her complaint to the not-for-profit's executive director. Cole-Rivera used her home computer to post a Facebook message saying "Lydia Cruz, a coworker feels that we don't help our clients enough . . . I about had it! My fellow coworkers how do u feel?" Four more employees posted messages on Cole-Rivera's Facebook page objecting to Lydia Cruz-Moore's complaint. Cruz-Moore posted "stop with ur lies about me." When Cruz-Moore complained, the executive director decided that Cole-Rivera and her four co-workers had bullied and harassed Cruz-Moore in violation of the company's zero-tolerance policy. Hispanics United fired the five employees the next workday. The NLRB found that Cole-Rivera and her four other fired co-workers were banding together for "mutual aid or protection," which was protected under the NLRA. They were ordered reinstated in their jobs and awarded back pay. The right to pursue mutual aid or protection was central to the decision by an NLRB judge in September in the case of Butler Medical Transport. Butler fired two employees because of their Facebook posts. William Norvell had a colleague who posted on her Facebook page that she had just been fired for complaining about the condition of Butler's vehicles. He responded to that post by writing "Sorry to hear that but if you want you may think about getting a lawyer and taking them to court." Later he wrote "You could contact the labor board too." The judge found that Norvell could not be fired for his comments, which the judge said were about a matter of mutual concern to employees. The second employee who Butler fired for a Facebook posting had posted an expletive-laced rant implying his company vehicle kept breaking down. The judge said his posting was not protected speech because it was "maliciously untrue" and Butler did not violate the law when it fired him. A government employee cannot be retaliated against for clicking on a Facebook thumbs-up "like" icon because that is protected by the First Amendment's right to free speech. A federal appeals court decided in September that a Virginia sheriff could not retaliate against employees who "like" the sheriff's political rival. The lower court had said that "liking" the opponent did not amount to speech. But the appeals court held that it's a "substantive statement" showing approval, and said "liking a political candidate's campaign page communicate's the user's approval of the candidate...it is the Internet equivalent of displaying a political sign in one's front yard." Public officials cannot retaliate against anyone for exercising First Amendment rights, but beauty stores may—provided they don't violate the National Labor Relations Act. COMMON SOCIAL-MEDIA POLICIES MAY VIOLATE THE NLRA Many large companies have social-media policies to describe in detail what their employees can do on social-media sites, both on and off the job. These polices typically say that employees who access social media from company computers, 54 November 2013 | beautystorebusiness.com or refer to the company in their communications, must identify themselves as employees, must not disclose any company confidential information, may not disparage the company or any person, and may not post anything about a person without his or her consent. Employees who violate the policy may be fired. In 2012, the NLRB invalidated parts of Costco Wholesale Corp.'s social-media policy saying it prohibited communications that employees could have for mutual protection. The NLRB invalidated a provision that stated "Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation … may be subject to discipline, up to and including termination of employment." The NLRB said this policy was so broad that employees could reasonably interpret it to ban protesting poor treatment of employees, or criticism of Costco managers, both of which are protected activity. The NLRB said that harassing, malicious or abusive speech may be banned by employer social-media policies, but this particular policy went too far. Costco was ordered to remove the language that prohibited statements that damage the company or any person's reputation and to post and distribute notices to employees. STALKING JOB APPLICANTS Teenagers call looking up someone's statements and photographs on social media as stalking that person. Stalking sounds like an evil thing to do, and in the context of checking up on employees and job applicants, it can cause as many problems as it solves. Most people post information about themselves on Facebook, Pinterest and even LinkedIn that is illegal for prospective employers to ask about. For example, if a person posts his photograph, it will show race and approximate age. A family photo may show whether a person is pregnant, has children or may be caring for special-needs family members. Employers cannot ask about these topics in an interview, but could learn the answers from social media. If your business stalks a job applicant and then decides not to hire her, she may have a claim of illegal discrimination. Some social networks—such as LinkedIn—tell members who has looked at their profiles so prospective applicants will know if you have seen their photographs and read their profiles before turning them down for an interview. Some companies have asked job applicants or employees for their personal social-media usernames or passwords so they can get an in-depth view of the person's behavior. Fifteen states already have laws making these requests illegal, and another 26 have introduced bills to ban it. These states have concluded that the risks to personal privacy outweigh any benefit employers would gain from policing trade secrets, minimizing their liabilities for employee's statements, or screening applicants. Some of the laws go further and prohibit requiring an employee or job applicant to give access to their posts by friending someone at the company, or having the applicant log in to their account while the employer or prospective employer watches. These laws vary from state to state. For example, Michigan's law contains several sensible exceptions to the general ban on asking for passwords. Among other things, Michigan allows employers to ask for usernames or passwords to access devices the employer paid for, and when the employer has specific information about thefts of confidential information. Any person whose rights under the Michigan law are violated can sue for up to $1,000 plus attorney's fees. As all of these new media issues illustrate, our fast adoption of social media has outpaced the law in some areas, but the laws are catching up and applying old concepts to these new methods of communication. ■ Editor's note: Jean Warshaw will explore more legal issues surrounding social media in our January 2014 issue. This copyrighted article is intended to help make you aware of some of the issues that you may face, but it is not exhaustive and does not constitute legal advice. You should consult your lawyer for legal advice about the particular circumstances of your beauty business. Jean Warshaw is a lawyer in private practice in New York City. She provides advice on business and environmental law. She can be reached at 212.722.2240.