When An Employer’s Social Media “Encouragement” Becomes An Overtime Wage Violation

“Social media law” is all the rage these days, and it’s not hard to see why: employers across the country are desperate to use social media to promote their brands or to rid themselves of undesirable employees, as the case may be. 2012 was the first year that really produced anything like a solid body of law to be analyzed as the first wave of social media lawsuits produced court opinions and a handful of legislatures began to address the issue.

 

A recap is in order. I don’t profess to be an expert on social media law — Google tells me there are over 194 million “social media lawyer” pages, though most everything you could need would be on MoFo’s Socially Aware, or Eric Goldman’s blog, or Bradley Shear’s blog — but the big trends aren’t hard to spot. Three of those trends jumped out at me:

 

First, the National Labor Relations Board issued several memoranda last year noting that both union and non-union workers had a right to discuss working conditions without fear of retaliation, including on social media websites, a policy the NLRB has already enforced to restore the jobs of workers fired for negative remarks about their employer on Facebook and Twitter. (Then came the judicial atrocity of Canning v. NLRB, which has thrown into doubt everything the NLRB has done since January 2012, so who knows what the eventual fate of those policies will be.)

 

Second, a couple of state legislatures have stepped in to stop the odious practice of employers demanding the usernames and passwords of potential employees, to snoop for embarrassing information. Eric Goldman and Venkat Balasubramani have raised concerns about these laws (Eric here, Venkat here), not (I hope) because they think employers should be snooping around their employee’s private lives, but primarily on the grounds that the law can create problems where employees end up using their social media accounts for “mixed” personal and business purposes. More on that in a moment.

 

Third, several lawsuits involving Twitter, Facebook, and LinkedIn accounts that were either — depending on which side you credit — personal accounts hijacked by the employer after the employee was left, or business accounts stolen by the employee after the employee left, produced court opinions. Venkat’s post above links to his various discussions of each, but for the moment there aren’t really any clear rules of law other than, in essence, everybody (employers and employees) should pay attention to their employment policies and should figure this issue out in advance.

 

The “mixed” personal and business social media accounts are what prompted this post. A family friend of our’s was recently given a “training” at work that consisted of a variety of saccharine management slogans on PowerPoint slides — e.g., “The Smartest Person in the Room is the Room,” a phrase that impressively bollixes up every noun and adjective within it — plus a not-so-subtle indication that the employees were all expected to set up quasi-personal Twitter accounts and start “engaging” with others for the benefit of the employer. It’s not the first time I’ve seen an employer imposing Facebook and other social media requirements.

 

And that’s where at least two problems arise. One problem relates to the ownership of these accounts if the employee leaves, the issue that has been playing out the cases discussed by Eric and Venkat. The other problem relates to an issue larger than just social media: employers’ increasing demands that employees devote their off-time to communications for the employer’s benefit.

 

I wrote a couple months ago about some of the successes in 2012 in wage-and-hour class actions, most of which involved, unsurprisingly, businesses asking their rank-and-file employees to work more than normal hours, often without paying overtime, sometimes without paying at all. One of the hottest — or should I say most heavily litigated — areas of wage-and-hour work these days involves “remote work,” including employer requirements that employees be available by e-mail beyond normal business hours.

 

As two employer defense lawyers at Ogletree Deakins summarize, the most commonly litigated off-the-clock work violations caused by e-mail access, cell phone availability, and the like include “remote communications by non-exempt employees” and “being required to check or respond to voice mails or e-mails before or after an employee’s regularly-scheduled workday commences or ends.” As they conclude,

 

It is not unlawful for non-exempt employees to perform these activities outside their normally scheduled hours. What is unlawful is for non-exempt employees to perform these principal activities without the time being properly recorded and paid in accordance with minimum wage and overtime laws.

 

Indeed, and that brings us back to all the Twitter, Facebook, LinkedIn, Google+, and Pinterest accounts that employers are now telling all of their employees to set up and use to give their employers free, personalized marketing. It seems some employers are starting to learn not to claim ownership over the employee’s social media accounts, which is good, but many have adapted by trying to coerce the employee’s into keeping the account as a “personal” account that is then expected to be used for the employer’s marketing.

 

Which is lawful if we’re talking about a corporate executive, or a learned professional, or a computer professional, or some other employee “exempt” from overtime requirements under the Fair Labor Standards Act. (Note that not everyone who uses a computer is a “computer employee” under the Fair Labor Standards Act, see Martin v. Ind. Mich. Power Co., 381 F.3d 574, 580 (6th Cir. 2004), holding computer professional’s work requires “theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering”).

 

But for rank-and-file white collar workers, if the employer wants to add to their duties and demand more of their time — like claiming ownership to the employee’s whole personality by demanding the creation and use of a social media profile — then they’re going to have to pay for it.

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