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Where employees used to huddle around the breakroom watercooler, they now huddle around their smartphones. Recent studies report that 69% of U.S. adults use at least one social media site, a staggering 88% of adults under 30 years old use social media in some form, and 77% of employees reported using social media on the job regardless of workplace policy. Social media can provide certain advantages for townships: citizen engagement, employee connectivity, and realistic approach to working with the public in a digital world. Not surprisingly, however, social media can also present considerable issues for townships. Use of social media on the job (excessive or not) interferes with job duties and workplace productivity. Poor regulation of social media can lead to embarrassing, divisive, and newsworthy public relations incidents. On the other hand, overregulation of employee social media usage can lead to legal liability and decreased workplace morale. This newsletter focuses on townships’ rights, as employers, to manage or restrict employees’ use of social media in the workplace. 

TTownships may be exposed to unnecessary legal liability when improperly regulating employee social media. State and federal law protect township employees’ use of social media, but these protections are not absolute and have their limitations.  Social media posts can often get under employers’ proverbial skin because of the very public nature of the activity; it may feel as if an employee’s venting about their workplace, hours, pay, or supervision on social media is an inappropriate means of airing the township’s dirty laundry.  Often, employers will seek to discipline or perhaps even terminate an employee for doing just that.  The employees’ protections for use of social media vary depending on what they post about, when they post, and the impact of the posting on the township’s operations.  To highlight this point, consider the changes in federal and state labor law recognizing the free-flowing nature of conversations on Facebook and the impact and considerations of the constitutional right to free speech provided by the First Amendment.  While there are certainly many other considerations at play in the management of social media issues, these three are quite critical to understand.

Federal Law – The Harbinger of the Labor-Related Restrictions on Managing Employee Social Media Use

Under federal law, the National Labor Relations Act (NLRA), enforced by the National Labor Relations Board (NLRB), protects employee social media. 29 USC § 157. The NLRA protects the rights of employees to address work-related issues, such as pay, benefits, hours, and working conditions with their employer and with their coworkers, whether that is at the bargaining table, at a meeting, or in discussions with coworkers or presentations to the public. The NLRA also protects employees’ right to bargain about those same issues, or to criticize their employer’s handling of them. Importantly, the NLRA offers protection only where employees are engaged in “protected concerted activity.” In other words, employees only receive protection from the NLRA where they act with their coworkers, or on the behalf of those coworkers. For many years, the water cooler was the best example of a location where employees enjoyed much protection from discipline or negative consequences, even when they shared serious discontent about a supervisor, their pay, or the working conditions. The NLRB has extended that view to include employees’ use of social media in recent years. 

While townships must be mindful of protected labor rights, it is appropriate to discipline employees for social media use in certain circumstances.  For instance, an employee will have less protection, or even no protection at all, when using social media to make an intentional appeal to the general public about a labor dispute, disparaging beyond the intended protection of the right to criticize the employer, or actually interfering with his or her own work, the work of others, or the township’s operations by some action on social media.

To determine the protection appropriate for a particular employee’s communication, the NLRB uses a “totality of the circumstances” test. That test evaluates:

• Evidence of anti-union hostility

• Provocation

• Impulsive or deliberate conduct

• The location of the conduct

• The subject matter of the conduct

• The nature of the conduct

• Similar content considered offensive

• Specific rules prohibiting the content at issue

• Similarity of discipline issued for similar violations or proportional offenses

The NLRB’s decisions on cases involving employees’ social media usage and the employers’ right to manage or discipline for that usage are not particularly encouraging; often, an employer’s social media policies are found to reach too far and discipline under those policies are found to “chill” the employees’ rights to engage in protected labor activity.  Although the NLRA does not per se apply to townships, understanding this base is critical to understanding the application of Michigan’s own state bargaining law.

State Law

This federal concept of protected concerted activity is used to guide the Michigan Employment Relations Commission (“MERC”) as it enforces state public sector labor law, Public Employment Relations Act (PERA). MCL 423.210. Unlike the federal law, however, a public employer like a township can run afoul of state law protections even without an unlawful motive if the employer’s conduct is “inherently destructive” to the rights protected by the Act. This broad protection is designed to limit, or even eliminate, a public employer’s ability to discipline or discharge employees as a means of discouraging union organization, bargaining, or other protected activity. In assessing an employer’s potential infringement on protected concerted activity, the MERC considers: (1) the presence of union activity or other protected concerted activity; (2) employer knowledge of that activity; (3) anti-union animus or hostility towards the employee’s protected rights; and (4) suspicious timing or other evidence that the discriminatory action was taken as a result of the protected activity.  These rules, like those under federal law, were created long before social media use came into vogue but have been applied just the same in this digital age.  Because of this, townships must step carefully if they consider disciplining individuals for what might usually be considered insulting or offensive commentary about the township or its operations, including the rates of pay, hours of work, etc.

First Amendment

In addition to these labor law concerns, public employee social media usage may also be protected by the United States Constitution through the Free Speech Clause of the First Amendment. A public employee cannot be disciplined for his or her speech if that speech: (1) is about a matter of public concern; (2) is made as a private citizen (not made in the employee’s capacity as a public employee); or (3) if the interests in permitting the speech outweigh the township’s interest in operating efficiently and effectively. Taking those elements individually, a matter of public concern is broadly construed as “any matter of political, social, or other concern to the community.” This broad element is not carte blanche for personal griping. For example, when a public-school teacher posted on Facebook, “I’m not a teacher – I’m a warden for future criminals!” the court determined the post was a “personal statement, driven by dissatisfaction with her job”, not a matter of public concern. The timing of employee speech also factors into the analysis. A public employee speaking as part of his or her official job duties can be disciplined for the form or content of speech. On the other hand, there is considerable protection when public employees speak (i.e. post on social media) as private citizens.

To better illustrate the First Amendment test used for public-employee speech, take the example where a teacher wrote a newspaper article criticizing the local school board. He could not be disciplined because writing the article (1) was not part of his official job duties, (2) was about a matter of public concern, and (3) interference with the work relationship was minimal at best. The same was true where a police officer posted online about a city’s decision to remove certain rifles from service. His speech was made as a private citizen, on a matter of public concern (equipment for law enforcement) and made on his own time.

The final factor of the First Amendment analysis, and perhaps the most elusive, requires interest-balancing to determine whether the public employee’s interest in free speech outweighs the township’s interest in operating efficiently. Townships must be vigilant when considering discipline for an employee’s speech (be it live, in the newspaper, or on social media) and carefully assess whether that ‘speech’ causes interference with work, personal relationships, job performance, or the effective functioning of the township’s enterprise.

Considerations Before Discipline

Townships must remain mindful of the legal protections available to public employees. However, townships are not powerless to stop or curb employee social media use when it becomes a problem. Townships simply must remain mindful of certain pitfalls when it comes to discipline for social media use or any other employee speech. Whenever considering discipline for employee social media usage, always consider the three-factor test under the First Amendment and remain mindful of the labor-specific protections. Be sure to consider whether: the discipline is based on union activity or affiliation; the speech constitutes protected concerted activity; the speech was so extreme as to lose protection; where the speech occurred (on or off duty); and whether the timing of discipline would raise suspicions or appear to be due to bias.

To avoid potential problems with employee social media use (while on the job or when discussing work with the township) before such problems even arise, we strongly recommend a township policy imposing some reasonable restrictions aimed to ensure smooth operations, limited restraint on the protected components of employee activity, and meaningful considerations of the reality of our digital world. Remain mindful however that a social media policy must comply with certain legal standards as well.

To that end, it is important to note that the NLRB announced a new standard for the enforceability of employer social media policies in 2017. Previously, the NLRB would find a violation of federal labor law if a policy could be “reasonably construed” by an employee to violate his or her labor rights. In Boeing Co and Society of Professional Engineering Employees in Aerospace, IFPTE Local 201, 365 NLRB 154 (2017), the NLRB determined that the more appropriate standard was instead that a social media policy is only unenforceable if, when reasonably interpreted, would potentially interfere with labor rights.

Key Components of a Good Social Media Policy

An effective social media policy requires certain key elements and clarity of purpose: it is the township’s objective to police social media usage for the sake of it or to restrict only that activity that truly harms the township or the employment relationship. The policy should require that employees identify themselves as individuals not speaking on behalf of the township and to post an appropriate disclaimer whenever they engage in discourse on social media. The policy should also prohibit employees from revealing confidential information or internal reports of the township, although the township should be wary when considering discipline for release of information; recall that much of the information available to employees in their work is public information, rather than confidential. An effective social media policy should also forbid certain behaviors such as threats of violence, harassment, bullying, racism, sexism, or other discrimination against a protected class and, of course, any unlawful activity like stealing protected copyrighted or trademarked information. Certainly, townships may prohibit social media use while on the clock for productivity and focus reasons, but be sure to enforce that rule evenly so as to avoid challenges regarding disparate treatment.

Remind employees that they can and should share concerns with their supervisors directly instead of airing dirty laundry for all to read on social media. Note that such a policy is only effective if employees feel as though they can report concerns without fear of retaliation. To that end, it should be clear that employees who report violations of the social media policy will be protected from retaliation. Importantly, provide employees with specific examples of each type of prohibited communication to clarify expectations early and often, rather than waiting to find an employee who has tripped up. The more employees understand the social media policy and the township’s expectations for their behavior, the less likely problems are to arise in the first place. 

On September 24, 2019, the U.S. Department of Labor introduced a Final Rule to extend overtime eligibility to 1.3 million more American workers. This new Rule has four main provisions:

Raising the standard salary level for overtime-exempt categories – The largest change is the increase in the salary component of the test for establishing exemption from overtime compensation under the Fair Labor Standards Act. The current weekly pay rate of at least $455 will be increased to $684 per week (and from $23,660 per year to $35,568 for full-year workers). The Department estimates this change will extend overtime pay to an additional 1.3 million workers.

Raising the highly compensated employee level – The 2019 Final Rule raises the total annual compensation level for “highly compensated employees” from the currently-enforced $100,000 to $107,432 per year. The new “highly compensated employees” level reflects the 80th percentile of full-time salaried workers. 

Allowing employers to use bonuses and commissions to satisfy part of the standard salary level – The 2019 Final Rule allows employers to apply nondiscretionary bonuses and incentive payments (including commissions) to help satisfy the new standard salary for exempt workers, so long as these incentive payments are paid at least annually. However, contributions from these sources are limited to 10% of the salary level. Employers will have to be careful not to make mistakes when using bonuses and commissions to satisfy the new exempt salary requirement. Employers also should consider whether salary compression (two jobs previously distinguished by differing salaries become too close in salary) may become a problem.

Revising the special salary levels – The 2019 Final Rule sets special salary levels for certain U.S. territories and updates the “base rate” for motion picture industry employees.

Employers should “make a plan” about how they will implement changes by January 1, 2020, so that there is consistency and an objective rationale for any adjustments made to exempt and non-exempt classifications in order to comply with the new standard salary requirement.

Identify the exempt jobs in the organization which fall below the “new” exempt threshold because of the increased salary level required to be exempt from payment of overtime compensation.

Determine whether to have an “area” or border within which positions or employees close to the threshold will have salaries increased to meet the threshold, or they will be re-classified as non-exempt and entitled to overtime pay for hours worked over 40 in a workweek.

Consider that staff whose designation is changed from exempt to “non-exempt” may see that as a “demotion” of sorts, which may affect employee morale and performance. Make a plan to communicate any changes to be made, such as to job duties, work schedules, and staffing arrangements, and including any necessary new tasks that an employee may need to complete once the changes take place, such as filling out a timesheet.

The Department intends to continue to update the rules more regularly, noting that lengthy delays between updates necessitate disruptively large increases when overdue updates finally occur. This 2019 Final Rule replaces the “Final Rule of 2016” that was formally rescinded after it was declared invalid by the U.S. District Court of the Eastern District of Texas and was held in abeyance on appeal.

— Helen Mills, Sheralee Hurwitz and Chad Karsten

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