You’ve probably heard the story about Louisiana television meteorologist Rhonda Lee who was fired after she responded to Facebook messages from viewers who were criticizing her hair. The station said Lee violated policy and she was fired. Do you have a social media policy at your station? Should you? We turned that question over to broadcast attorney John Garziglia who says social media policies are a whole new field of employment law.
Radio Ink asks: Why is it important to have a Facebook (social media) policy and how often do I need to tell my people about it?
John Garziglia says: A TV meteorologist responds to viewer comments posted on her TV station’s Facebook page critiquing her hair, by personally posting her own comments. She was fired by her TV station employer for violating its social media policy which advised that “when we see complaints from viewers, it’s best not to respond at all”; urging employees to have viewers contact the station instead, stating that “this is the only proper response.”
Social media policies are a whole new field of employment law and restrictions on employees. What radio station social media policies can, and cannot, prohibit are guided by state employment laws and, more recently, decisions of the National Labor Relations Board.
Approaching the subject of social media policies from the employer’s point of view, a radio station understandably does not want employees saying and doing a variety of potentially harmful things online. Prohibited social media activities would likely include posting company trade secrets, harassing other employees, disparaging the station, using the radio station’s call sign, service marks and logos in unofficial communications, and holding out the employee’s personal views as views of the radio station. It is worth noting that most of these social media activities are likely equally verboten if done in a pre-social media world. Therefore, it should be fairly easy to explain to employees not to do something on Facebook or Twitter which they know they should not do if instead they were writing a letter or a newspaper article, or posting flyers around town.
The recent and troubling twist for employers are several recent National Labor Relations Board findings. The NLRB recently found that some social media policies prohibiting disparaging or critical social media postings about the employer or workplace violate the National Labor Relations Act. In one case, the NLRB found that an auto dealer’s social media policy requiring “courtesy” was overbroad and tended to chill employees in their protected rights to publicly discuss their terms and conditions of work. The social media policy at issue which the NLRB found at fault stated that “everyone is expected to be courteous, polite and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The fact that what appears to be a benign common-sense social media policy may be a violation of federal labor laws is surprising and troubling.
Also of concern to employers are a variety of state laws that protect employees from being terminated for off-duty conduct. These state laws were originally adopted to protect smokers but are now being expanded to include other activities. Likewise, there are state laws in some states protecting employees against termination for expressing political views, engaging in whistle-blowing activities, and retaliation for unwelcome statements. There are now many employee social media postings that could be displeasing to an employer but are protected under state laws.
Employees subject to an employer’s social media policy must keep in mind that, absent state law, there are few First Amendment constitutional rights with respect to an employer’s workplace rules. The First Amendment protects citizens from governmental restrictions on speech. The First Amendment does not generally protect employees from employer restrictions on social media speech. If state law does not otherwise prohibit it, an employee can be fired for a variety of social media speech and activities.
To put it in simple terms, even though a radio personality may have in her private life every right to have nude photos taken of herself and then share them among friends, if she posts the photos online, that may cause angst with her radio station management and, depending upon the laws of the particular state, she may be legally fired. Likewise, while a radio salesperson may have every right to join a far left-wing or far right-wing group, if the salesperson’s social media political rants become known to the employer, in many states the employee may be legally terminated. Individuals often have the right to do and say certain things on social media but do not also have a right to be concurrently employed while doing and saying those things.
For the employer looking at creating or updating a social media policy, the website https://socialmediagovernance.com/policies.php contains a compendium of social media policies adopted by a number of large employers. The site is both thought-provoking and dangerous.
It is dangerous to employers because, as noted above, state laws in each state are different when it comes to social media policies. Even though there may be social media policies from large entities in this database, there is no way to know if any particular entity has a legal social media policy and has updated its social media policy to comply with the latest NLRB findings. Therefore, other entity’s social media policies should be used as thought-starters only. Be sure to clear your own specific radio station social media policies with your own legal counsel prior to adopting them.
Social media has allowed anyone to be a publisher. Reflecting back on the meteorologist’s firing, the initial question to ask both as an employee and an employer is whether the meteorologist’s communication was proper regardless of the medium used. If a broadcast station has a policy that its air personalities not directly respond to viewer or listener complaints, but rather that such communications be handled by station management, it does not matter whether the meteorologist wrote a letter, placed a phone call, sent an email, visited the complainant, or sent a carrier pigeon. The station’s policy on responsive communications is the same.
The fact that the meteorologist’s response to the viewer took the form of a comment on the station’s Facebook page changes little. The broadcast station had a policy that management, not the air personality, responds to viewer complaints. Simply put, with that policy in place, she should have known better than to post her comments defending her hairstyle on the station’s Facebook page.