Social Media In The Workplace

Social media (Facebook, Twitter, LinkIn, the new Google+ and many other similar services) can provide welcome exposure for businesses and their employees (, but also pose risks. While the owner of a number of vacation cottages in Nova Scotia was able to book all her cottages with the help of Facebook, Domino's Pizza faced a public relations disaster in 2009 when two of its employees posted a YouTube video of employees violating health standards. A New Jersey appellate court ruled that an employer could be held liable for the damage caused by an employee who uploaded pornographic pictures of his wife's 10-year old daughter from an earlier marriage. Doe v. XYZ Corp., 887 A.2d 1156 (2005). As discussed in an earlier post, the National Labor Relations Board has ruled it an unfair labor practice for employers to discipline employees for communicating their unhappiness with their working conditions on Facebook.

What should an employer do to navigate successfully between the Scylla of a large award to someone damaged by employee use of social media and the Charybdis of an equally large award for invading employee privacy? Here are some suggestions:

1. Develop a written social media policy. This is a must. Take the time to think through what uses of social media at your workplace are appropriate, and have all employees acknowledge the policy in writing. For a list of over 100 examples, visit this page, at socialmediatoday.com
2. Consider banning all access to social media at your workplace. In addition to the liability risks mentioned above, social media are a significant drain on productivity. A 2010 survey found that employees spend more than an hour a day on social media, primarily for personal reasons.
3. If you permit use of social media from the workplace, make sure that the social media policy explains that inappropriate content may not be posted, and that use of the company's equipment to access social media may be subject to monitoring by the company.
4. Do not use searches of social media sites to make hiring decisions. Such searches may well turn up personal characteristics (such as religion, national origin or sexual orientation) that should not be part of the hiring process. The information may also be unreliable. If you need to look into a potential employee's background, use an established provider to do so.
5. Be careful when monitoring social media postings by employees. Using surreptitious means to access a private site can subject the employer to invasion of privacy of liability as the owner of the Houston's Restaurant chain found out in federal court in New Jersey. California prohibits making adverse employment decisions based on political activities (Labor Code sections 1101 and 1102) or lawful conduct while off-duty (Labor Code sections 96 and 98.6).

Arbitration Of Unpaid Wage Claims

Many employers prefer arbitration to lawsuits and administrative hearings. Although the law permits employers to require arbitration of employment disputes, California courts have imposed some restrictions. See, for example, Armendariz v. Foundation Health Psychcare Services, Inc., 4 Cal.4th 83, 6 P.3d 669, 99 Cal.Rptr.2d 745 (2000) (requiring an arbitration agreement to include certain procedural protections for employment claims under anti-discrimination laws).

In Sonic-Calabasas, Inc. v. Moreno, Case No. S174475 (Cal. Sup. Ct. Feb. 24, 2011), the California Supreme Court delineated the role of arbitration in unpaid wage claims filed with the California Labor Commissioner. The California Labor Code gives employees with unpaid wage claims a choice -- they may go directly to court with an ordinary civil action, or they may seek administrative relief by filing a wage claim with the Labor Commissioner (a process called a "Berman" hearing). In a Berman hearing, the Labor Commissioner's staff assists the employee in putting on the wage case. To obtain de novo review in court (where the Labor Commissioner may represent the employee), the employer must post a bond for the full amount of any award. If it loses the appeal, it must pay the employee's attorney fees. If the employer wins its appeal, it can not recover its own attorney fees.

The Sonic-Calabasas employer argued that its arbitration agreement with its employees waived the Berman hearing process, but the Supreme Court ruled that such a waiver was unconscionable and against public policy. However, the employer may invoke the arbitration agreement to have its appeal from any award following a Berman hearing determined by an arbitrator. In light of Armendariz, the employee would presumably retain the procedural advantages of the bond requirement and the fee-shifting provision in arbitration.

If you are interested in adopting arbitration procedures for your employees, the American Arbitration Association provides rules and other materials for prompt and effective resolution of workplace disputes through arbitration.