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August 1, 2012

When you hear the term social media what do you think about? If your only thought is Facebook, you may have a problem. Social media is the future and the present. Social media affects your business everyday: from an employee tweeting a complaint about an employer, to a customer expressing a complaint on Yelp; it has become increasingly important for businesses to control their brand in the world of social media. Equally important is avoiding the legal pitfalls in this widely unchartered area of the law. This article will discuss a couple tips for you to consider as your business becomes increasingly intermeshed with social media.

Create A Social Media Policy

Section 7 of the National Labor Relations Act protects the activity of employees related to the improvement of labor conditions. Section 7’s protection is very broad. Thus, a Facebook post that reads, “only given 30 minutes for lunch today at work, not fair”, is protected activity. On May 30, 2012, the General Counsel of the National Labor Relations Board (hereinafter the “NLRB”) issued a memo in an attempt to clarify how an employer may control an employee’s social media interaction. This article is not a substitute for the 26 page NLRB memo.  Read the memo, or consult counsel before drafting any social media policies.  In the interim, here are some things you should consider: First, make sure your employees read your social media policy. Second, your employees are not your spokesmen; make sure they know this when interacting on social media. Third, protect your business by restricting your employee from posting confidential information.  Be aware that some confidential information, such as salary and bonuses is protected by the Act and likely may not be restricted via a social media policy.  Fourth, prohibit the use of social media at work unless it is work related. Lastly, remain diligent in staying up to date on NLRB social media policy because it is constantly evolving.

Tread Cautiously When Interacting With Employees and Prospective Employees through Social Media

You can learn a lot about your employee or prospective employee by accessing their Facebook, Twitter, or LinkedIn account.  Likewise, your business may derive a benefit from using an employees’ social media account. However, both of the above activities may expose you and your business to civil and possibly criminal liability.
In a recent decision the Northern District of Illinois, found that an employers’ use of its employees Facebook and Twitter accounts were sufficient to allege a false endorsement claim under the Lanham Act.  Maremont v. Susan Fredman Design Group, Ltd., 772 F. Supp. 2d 967, 970 (N.D. Ill. 2011).  Under the Lanham Act, “false endorsement occurs when a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service.” Id.  15 U.S.C. §1125(a)(1)(A).  Proven violations of the Lanham Act award the winning party treble damages.
In another Facebook faux pas, a law firm representing an insurance company hired a private investigator to become Facebook friends with a minor to assess her damages resulting from a dog bite. The private investigator, the law firm, and the insurance company are all being sued by the family of the minor for allegedly violating sections 18 U.S.C. §2707, and §2701 of the Stored Communications Act.  The Act, which was enacted to prevent abuse of access to stored electronic communications (think emails and text messages), carries with it both civil and criminal penalties.
Lastly, a lawyer and his client in the Commonwealth of Virginia recently encountered the trappings of Facebook malfeasance when a judge found their conduct sanctionable to the tune of $722,000.00 and a reduced jury verdict award from $6,227,000 to $2,100,000.  The basis of this sanction was that Plaintiff’s counsel directed his client to “clean up” his Facebook page.  The Plaintiff thereafter deleted photos from his Facebook page which depicted him in a jovial state.  These pictures were relevant to the litigation because the Plaintiff’s wife had recently died in a car accident and the pain endured by the Plaintiff in losing his wife was significant in awarding damages.

What To Take From All This?

Social media is big, fast moving, and whether you like it or not, a part of
your business. Unfortunately, the law cannot keep up with the ever changing medium of social media; what is true today may be obsolete tomorrow.  All you can do is remain vigilant, consult counsel before making any social media related decisions, and when all else fails, err on the side of caution.