Why Social Media Policies Can Subject Employers to Lawsuits [e213]

August 10, 2015

Nasir and Matt discuss the National Labor Review Board’s challenge of an employer’s social media policy andthe reason why the employer was able to prevail.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And that is all. I’m going to stop talking now because I tend to just… you pause and then I get nervous and then I don’t know what to say.

MATT: You come in so excited and then it’s just stage fright. You’ve only memorized that first line.

NASIR: Exactly. No, I might as well just end the podcast. I don’t know what I’m doing. I need a script.

MATT: I don’t think it’d be as exciting if we read straight off a script. It’d probably be more factually accurate but…

NASIR: Probably, instead of like, “Okay, what are we covering today?” Well, what are we covering today? Social media policies, right?

MATT: Yeah, social media policies and I guess employer policies in general. It kind of springs off this social media policy case. It’s actually, well, I’m a little bit surprised. It’s usually that it comes down pretty harsh on employers. We’ll see if everyone can follow me on this to explain the procedure of how this case worked. The general council on the NLRB – National Labor Review Board, I believe – they challenged an employer’s social media policy saying it was unlawful – basically saying it was too restrictive, prohibited protected activity – essentially free speech it looks like. General accounts of NLRB challenges this policy as unlawful which then went in front of an administrative law judge which decided that the policy was in fact not unlawful. Then, it was reviewed by the NLRB that affirmed the ALJ’s decision that the policy was not unlawful. Long story short, this policy of Landry’s Inc…

NASIR: Is not unlawful lawful.

MATT: Yeah.

NASIR: Is that what it is?

MATT: Yeah. You know, I was reading something written by an attorney the other day and it had so many just negatives in it. It was just impossible to read. Like, “Just use clear language.”

NASIR: Yeah.

MATT: It was a court decision so it was even worse.

NASIR: That’s even worse, yeah, written by a lawyer, still.

MATT: I think it might be worthwhile for me to read this policy – at least this section because it’s not that long. We’ll let the listeners decide.
“While your free time is generally not subject to any restriction by the company, the company urges all employees not to post information regarding the company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.”

NASIR: It’s actually a very well-written policy, believe it or not, and it’s proven to actually withstand its criticism. By the way, Landry, I guess they operate Bubba Gump Shrimp restaurants which I think I’m only familiar with, they always seem to be on piers across the country – San Francisco, Seattle, I think they have one here in Galveston, Texas, too.

MATT: You’re familiar with it because of Forrest Gump, I would assume.

NASIR: Oh, well, yeah, obviously, but I’m familiar with it as a restaurant. What’s funny about this – oh, not funny, it’s just frustrating, actually – the NLRB general council, in my opinion, this policy is pretty well-worded and yet still they challenged it and it just goes to show you, like, it doesn’t even matter what the law is sometimes. You have to be ready to defend yourself when it comes to these employment matters, especially from the NLRB.

MATT: I agree with you too and I’m reading through the general council’s sort of thought process through this and I’m not surprised by the things that he highlighted. He had issues with the language referencing morale and being civil to others and their opinions. I mean, this is a pretty fair policy and I don’t think it’s being restrictive at all. I mean, it’s just kind of common sense almost.

NASIR: And so, to kind of be clear on what the NLRB is trying to actually restrict here is what is called concerted activity and it’s a form of protected speech, really. It’s a legal term used in labor policy to basically define an employee protection against employer retaliation and it usually has to do with discussion about unionizing but it also applies to discussion about safety violations or wage laws or unfair activity in that respect and so that’s the real aspect of what they’re trying to protect. The concept is that, if your social media policy is so broad that this type of protected activity is restricted, then now your policy is not lawful.

MATT: Right, and that’s not what’s happening here. They’re not saying…

NASIR: Or unlawful, sorry.

MATT: The employer is not saying…

NASIR: To which.

MATT: Yeah, the employer is not saying you can’t make any posts about the company or employees on social media. It’s just defining what you shouldn’t do. Essentially, what it’s saying is, in my opinion, don’t make defamatory comments about the company or people that work there. I mean, that’s how I kind of view it. That’s just telling the employees: “Do not break the law.”

NASIR: Yeah. Unfortunately though, it’s kind of complicated – even for lawyers. If you just look at, for example, Wendy’s went through this a year ago in their handbooks and so forth and they had some social media policies. Some of the restrictions that were found to be unlawful I think for most people, it wouldn’t be surprising to have in their handbook or to even put it in there such as some unlawful policies which included commenting on business, financial performance policies, employees or competitors on social media, right? That was considered to be an unlawful provision. Posting photos taken at company events or of company employees; maligning, defaming, disparaging, or insulting co-workers, customers, or competitors, right? These are all examples of things that were not included. Most likely, it’s because of how they were worded or whether there was this claim but, just as an example, some policies that were allowed were restrictions on commenting on trade secrets and proprietary information, i.e. confidential information. Taking, distributing, or posting photos, videos, or recordings of co-workers or work areas during work time unless in furtherance of protected activities, right? Most of these things can probably be done anyway but you just have to be a little bit more careful in drafting these provisions. It’s not an easy task. And some of these templates probably don’t comply with these kinds of restrictions and laws.

MATT: I think the key is what they’re saying is a lot of these are just overbroad because I have one here pulled up: “Do not discuss customer or employee information outside of work, including phone numbers and addresses.” I mean, that seems like common sense. That should be something that wouldn’t be allowed to have restricted but, in this case, they’re saying that’s overbroad.

NASIR: As stated, it’s overbroad but I think what they’re trying to do is not overbroad. It’s like, well, yeah, you can talk about that – that’s what we meant – but, unfortunately, when you’re dealing with the language and in writing, you have to be a little bit more clear.

MATT: Just going back to this for Landry’s, it’s dealing with social media policy. I was thinking, what if it didn’t have anything to do with posting on social media? What if it was strictly talking about not saying anything outside of work? I mean, would that change it? I think the fact that I guess they could always deny that that was said. With social media, you can actually see physical proof that something was posted.

NASIR: Yeah, you’re right. I mean, really, the law hasn’t really changed other than the fact that – you’re right – in social media, there’s a little bit more of a record and proof when it comes to that which goes to kind of the next issue. This may not be the focus of this episode but a lot of people have to deal with what happens when you have to terminate somebody or discipline somebody because of something they posted on the internet? Whether it’s through a social media post or a blog or what-have-you. The answer is not as simple as you may think. For example, an employee who engages in a conversation on her Facebook with maybe a couple of her friends but then her co-workers join in the conversation about how bad the work experience is may be actually protected speech whereas some employee who makes some comment threatening that – not even threatening – making fun of one of their customers for X, Y, and Z, that may not be protected activity and it’s very, very fact-specific. And so, we joke around that pretty much every state’s an at-will state but the reality is that you need to have a real reason to fire them. Otherwise, the employee may find an illegal reason why you fired them and so you have to be very careful with that.

MATT: It’s not easy for employees. I mean, there’s no getting around that. Even if you think you’re doing something right, someone will determine you’re not – or they could. It reminded me of… I want to say this was a few weeks ago, something my wife showed me. I’m going to get the store wrong. I think it was Coles or JC Penney or one of those department stores like that and it was a woman who got sent home from work one day because her outfit was too revealing or not appropriate. The only problem was she bought it from that store and in their work clothes department which was really funny. But then, she took a picture of herself flipping off with her middle finger up and then, you know, posted it and something about it to the store. It was good up until that point where she kind of ruined it but I thought that was pretty funny how she got sent home for that.

NASIR: Yeah, she made it obviously worse. There was nothing good that came out of that.

MATT: I guess, for employers, I mean, I don’t want to say the advice is “don’t be overbroad in your social media policies” but there’s probably something better we can say than that.

NASIR: You’re right. It’s not easy to kind of give a final advice other than first think about what your purposes of the social media policy is. Do you really need one? I would say the answer to that is yes. But how involved in your employees’ lives do you want to get into? And is your business such that, besides the typical kind of employee rant online, is there something else that you’re trying to protect? That would be my focus. And, of course, getting a lawyer to actually write up this policy, and making sure, even the lawyer, you know, it’s not an easy job for the lawyer too because this is a changing area of law with the NLRB’s aggressive enforcement for this.

MATT: Yeah. I mean, I guess that’s the thing too. If anything, even though they weren’t successful this time, it’s showing that they’re taking a pretty employee-favorable approach to this. I guess a hostile approach towards employers. There’s a memo that came out from the general council of NLRB earlier this year. I think that’s what you were kind of referencing to, I think that was the Wendy’s one.

NASIR: Yeah.

MATT: People can go through and read some of the stuff in there. I just can’t see how any person using just reasonableness would read through that and say, “Some of these things, yeah, that’s acceptable to be unlawful.” It’s tough.

NASIR: Exactly, it is tough. Well, thanks for joining us, everyone. I think that’s our podcast episode. We should have all our listeners read that thirty-page general council statement about all this.

MATT: It’s actually not as long as it seems. It’s a lot of one- to two-sentence quotes that are bolded.

NASIR: Oh, okay.

MATT: Yeah.

NASIR: Is it like a pamphlet or something? I don’t even want to open it up.

MATT: Just a straight up memo.

NASIR: Okay.

MATT: Yeah. All right. Keep it sound and keep it smart.

Legally Sound | Smart Business

By

The Podcast Where Nasir Pasha and Matt Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to info@legallysoundsmartbusiness.com.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.

Latest Episodes

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying/Pasting Agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific to your…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

June 23, 2016

Nasir and Matt discuss the criminal charges facing FedExinvolving the alleged transportation of illegal drugs. They also talk about how business owners should address working with customers that may be breaking the law.

June 15, 2016

The guys return after a long break to discuss why Yahoo is auctioning off over 3,000 patents and how this decision will affect the longevity of the company.

May 25, 2016

Nasir and Matt discuss the increase in the salary thresholdfor exempt employees and how employerscan try to avoid paying overtime as a result.

May 18, 2016

Nasir and Matt discuss the Baltimore law that makes it very difficult to operate food trucks in the city. They also discuss all the legal restrictions tohaving a food truck.

May 11, 2016

Matt listens to Nasir recap the developing battle in his hometown of Vandalia, Ohio over whether a Dunkin Donuts can move into a location in close proximity to a local favorite donut shop. They then discusswhether the issue is more legal or personal.

May 9, 2016

The guys kick off the week by discussing a Nevada employee who is claiming she was fired for not supporting the Scientology beliefs of her employer.

April 27, 2016

The guys discuss the massive floods in Houston,how employers responded, and why one meteorologist became a local hero. They also discuss the steps businesses should take in preparing for storms outside the workplace.

April 20, 2016

The guys discuss the boycott of Amazon over the products of an unnamed presidential candidate. They also talkabout how a business should handle a boycott and whether it’s possible to exit one unscathed.

April 13, 2016

Click here to read HubSpot’s response on this topic. Nasir and Matt discuss the trend in startups to compensate programmers and other early employees with stock options and how the company culture at HubSpot isn’t what it seems.

April 6, 2016

Nasir and Matt discuss various lawsuits against social media platforms in which users are accused of artificially inflating their social currency.

March 30, 2016

Nasir and Matt discuss the class action suit against Jessica Alba’s Honest Company for allegedlyselling products that contained harmful chemicals.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More