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Fire an employee over disparaging social media posts? Don’t, says this Boise attorney

Legal problems arising from employees posting on Facebook and other social media often stem from the failure to draft sound social-media policies and to train employees how to use social media appropriately, Boise lawyer Lisa McGrath says.
Legal problems arising from employees posting on Facebook and other social media often stem from the failure to draft sound social-media policies and to train employees how to use social media appropriately, Boise lawyer Lisa McGrath says. AP

As social media takes on a larger role in our work and private lives, the legality of what gets posted, and by whom, becomes a bigger, dicier issue. That’s the realm of a still-emerging specialty in the legal profession: social media law.

The field is expanding as social media figures into cases involving crimes, freedom of speech and political freedom.

Social media law is an outgrowth of privacy and First Amendment law, and it touches every aspect of our private and business lives, said Boise social-media attorney Lisa McGrath.

“People don’t realize how much social media impacts their business and their lives,” McGrath said.

McGrath, 37, grew up in Dallas. Her family moved to Boise when she was in junior high school. She began tweeting in 2007, early for a lawyer.

She headed the Boise Social Media Club, which created TweetUp events around the Treasure Valley. As social media began to expand to different platforms — Facebook, Instagram, Snapchat, Google — the questions about advertising transparency, free speech and legal and corporate ethics multiplied.

Q: What do business owners understand the least about social media?

A: That’s a big question, because there’s a lot. For example, I do a lot of speaking engagements and training for businesses, and I usually ask, ‘Do you think, as a private or nonprofit employer, you can prohibit your employees from making disparaging or inflammatory comments on their private social media?’

1118 BI Lisa McGrath
Lisa McGrath

Almost all of them say absolutely they can. But the real answer is no, you can’t.

They think that because Idaho is a right-to-work state, they can fire an employee for any reason. What they don’t realize is that the [National Labor Relations Act] says employees cannot be disciplined or fired for social media posts that constitute “concerted activity” — that is, posting about their wages, their manager and other terms of employment.

Q: What can they prohibit?

A: Not a lot. An employer cannot prohibit employees from making or posting inflammatory remarks on social media, or from “liking” a post. They can’t prevent employees from posting photos, music, and video, including those containing the employer’s logos or trademarks. They cannot prohibit an employee from using social media at work. And the list goes on.

This only applies to private companies and nonprofits, not to government employers, where you can be fired for inappropriate social media posts, subject to the First Amendment, of course.

Q: What are some other big issues?

A: Brand damage from bad social media calls is huge. I tell my clients that brand damage associated with social media legal issues is always worse than the legal or financial liability.

For example, in the case of [Boise State University] — I’m a graduate of the Honors College, so I’m not throwing them under the bus — they lacked legal compliance back in August when football coach [Bryan] Harsin blocked people on Twitter. Because BSU is a public entity, and Harsin uses an official BSU Twitter account, it quickly became a First Amendment issue.

And there’s often a disconnect in understanding social-media law in this context. The point is, the fallout and damage to the school’s reputation was significant. Even though it’s unlikely that anyone is going to sue Coach Harsin, BSU had a couple of really, really bad days.

Also, remember the Nordstrom The Rack opening? It was a really nice opening with people lined up around the block, and it turned into a [Federal Trade Commission] investigation. It still comes up when you Google it after all these years.

[In 2012, Nordstrom invited dozens of Boise “influencers” with large followings to to blog and tweet from the long-anticipated opening of The Rack. Those people were given $50 gift cards to attend. The FTC investigated but in the end did not prosecute.]

The damage to Nordstrom’s brand integrity was significant.

Q: Is that just a sign of the times?

A: Influencer marketing is everywhere. Companies want to get their products out there, and they’re doing it through influencers on Instagram, on Facebook, on Snapchat. What the FTC is after is transparency. They want consumers to understand when someone is really endorsing a product or if they’re being paid to do it.

If someone is being paid to endorse on Twitter, should they use “Ad” or “Sponsored”? Where should it be — at the end or beginning of a tweet? The end is insufficient, because of the nature of retweeting, some of the content being lost. They determined that “Spon” is insufficient. A hyperlink that links to a disclosure is insufficient.

My advertising clients don’t want to put “Ad” at the beginning of a tweet, because it looks bad, but that’s what I advise them, their clients and any third party to do.

Q: How do companies protect themselves?

A: Getting a social-media policy in place is the best thing companies can do to protect themselves. Companies are now required to have social-media policies with legal provisions related to the NLRA, and the NLRB [National Labor Relations Board] has been extremely aggressive in enforcement, striking down the social-media policies of Target, Costco, Chipotle and many others.

Q: Social-media policy? Is that something you can find online?

A: Not really. There’s not a one-size-fits all policy, because laws differ from industry to industry. With law firms, you’re dealing with legal ethics. Financial companies have entirely different issues. An advertising agency’s policy is going to look very different than another corporate client’s.

Also, because social media in the corporate world is usually housed in marketing and communications, we have marketers writing social-media policy, and they usually leave out all the critical legal provisions.

These policies can be a safe harbor in legal liability when things go bad on social media.

A lot of companies don’t think to have provisions about the company or government owning the social-media account. And the courts have been really clear on this. If you have it in your employee agreement, courts side with the company or government.

Dana Oland: 208-377-6442, @DanaOland. This story is part special coverage of the business of law in the Nov. 15-Dec. 19, 2017, edition of the Statesman’s Business Insider magazine.