By Anne Wallace Allen
BridgeTower Media Newswires
BOISE, ID — Lisa McGrath is a lawyer who specializes in issues relating to social media, the internet, and other online matters.
McGrath started out in government work in high school with an internship with Gov. Phil Batt, and earned a bachelor's degree in political science from Boise State University. She spent several years in the political realm in Boise and Washington, D.C., earning a law degree from American University and serving as a law clerk for the U.S. Senate Judiciary Committee and later as counsel in the U.S. Senate.
Nowadays, she speaks widely and counsels a client list that includes Fortune 500 companies on legal problems related to social media. Idaho Business Review spent some time with her learning about her work and how companies can stay out of trouble in a complex and ever-changing area of human resources law. The interview has been edited for length and clarity.
How did you make the shift from government work to social media law?
In about 2008-2009 I was very active on social media. I ran a social media club in Boise. Clients started coming to me with legal problems related to social media, and in their own words, they had talked to the lawyers and the lawyers weren’t on social media; lawyers didn’t even know what social media was. This kind of created a divide between the marketing and communication departments where social media is housed, and the legal departments.
Since social media is housed in marketing and communication departments we have an evolution of marketing and communication professionals and sometimes IT professionals drafting social media policies. That means there are no legal provisions in them. It’s critical to have legal provisions specific to every industry – specific to hospitals, specific to government agencies.
There was a hole in the market for the services I provided. The services I provided were evaluating the company and the industry and relevant laws regarding social media, drafting a legal social media policy and then training employees on it.
What are some of the more common mistakes you see with social media policies?
Most companies don’t have a social media policy. If they do have it, it’s been drafted by the marketing and communications team, so it covers social media etiquette but there are no legal provisions.
This isn’t me picking on small employers; I’ve worked with Fortune 500 companies who had a two-paragraph social media policy. So a lot of what I do is education, because there really is a gap between the race for people to deploy social media technologies which are so effective, and then now thinking about the legal aspects.
Where do companies commonly get in trouble with social media?
The National Labor Relations Board has struck down dozens and dozens of social media policies that prohibit employees from posting on social media on certain topics. The topics might be protected concerted activity under the National Labor Relations Act.
Even the issue of social media account ownership has come up. Disputes over social media account ownership are expensive and numerous despite the fact that there's an easy solution: courts have upheld language regarding social media account ownership in a company's social media policy.
And almost every client I have talked to has no idea that they actually cannot fire employees for certain posts on social media. The NLRB has been very aggressive about protecting employees’ rights to something called concerted activity– their rights to talk about wages, working conditions, and other terms of employment.
So courts have struck down prohibitions as unlawful that prohibit employees from using social media on work equipment during work hours or prohibit employees from sharing non-public information on any site. They’re saying those prohibitions are too broad.
You also can’t prohibit disparaging or defamatory comments, or objectionable or inflammatory social media posts.
Employers can’t prohibit these things even if the employee isn’t discussing conditions covered under the NLRA?
The courts are saying these prohibitions are over-broad because they could potentially prohibit employees’ rights to engage in concerted activity, which is talking about wages and working conditions. For example, technically they can prohibit them from sharing certain aspects of the company’s confidential information, but that broad prohibition is unlawful because the confidential information could be about wages, and that is protected speech.
Can companies rewrite their social media policies to govern these things?
Yes, with very careful drafting. It requires a very close review of all the cases that have come out.
What other issues come up?
Another difficult thing for my clients to understand is how old laws are being applied to social media platforms. For example, in the hiring process, you cannot consider protected class information, such as race.
My clients aren’t really cognizant that they need to not consider protected class information if they are checking out the applicant on social media.
So how can they address this in hiring? Can they still check the person out on social media?
I recommend having a designated social media searcher, completely separate from the hiring manager, who can use public information and only forward on information that doesn’t include this protected class information. Otherwise it’s difficult to prove in a court that you’re not considering that information.
What about the handling of comments?
This gets complicated. If public entities' social media platforms are open to the public and are designated public forums under the First Amendment, they cannot lawfully delete comments or ban users based on content. You can make it a designated limited public forum.
A lot of sites don’t have a comment policy and people can post freely, which means it’s a designated public forum. Public entities are subject to the First Amendment. The government is wildly different in terms of the law from a private corporation, on when it is constitutional or not to delete a comment.
What other issues come up?
The social media account ownership issue is big. There are court cases out there with judges trying to grapple who owns the account.
The issue is that people, even if they have a corporate email address, are creating accounts with their own email and then walking away with thousands of followers. Courts are grappling with who owns these accounts, because these companies are losing this segment of their community they have worked so hard to build.
If you have an employee agreement with language about social media account ownership, they will uphold this in court.
FTC ad disclosures and native advertising come up, too.
What’s coming down the pike?
I work with advertising agencies, government agencies, and private corporations on advertising disclosures, because the FTC is aggressively pursuing enforcement because they want influencer marketing to be clear to consumers. They want consumers to know when someone is being paid to promote something.
Another thing the FTC has just released is native advertising guidelines. That’s huge.
And the NLRB continues to strike down social media policies. It’s very aggressive against companies right now on this issue. I update social media policies about once every month to two months because it’s evolving so quickly.
The National Labor Relations Act
In the context of social media and the workplace, the number one issue my clients face is whether private and nonprofit employers can lawfully fire employees for posts on social media.
The National Labor Relations Act governs this issue, and what most people don't know is that the NLRA applies to most private companies and nonprofits.
The NLRA protects employees' right to "protected concerted activity," which is the right to talk about wages, working conditions, and other terms of employment on social media.
To date, it is unlawful for private and nonprofit employers to do the following in their social media policies:
1. Prohibit employees from posting non-public, confidential information on any site;
2. Prohibit employees from posting offensive, demeaning, abusive, or inappropriate posts on social media;
3. Prohibit employees from using social media on work equipment and during work hours;
4. Prohibit disparaging or defamatory comments;
5. Prohibit employees from "liking" a post;
6. Prohibit objectionable or inflammatory social media posts;
7. Prohibit employees from posting photos, music, and video, including those containing the employer's logos and trademarks;
8. Prohibit employees from posting to social media sites without receiving prior authorization from the employer first;
9. Prohibit employees from commenting on legal matters;
10. Require employees to make sure that their social media posts are completely accurate and not misleading;
11. Require employees to think carefully about "friending" co-workers.
The list goes on.
