EMPLOYMENT LAW IMPACT ON EMPLOYEE-DRIVEN SOCIAL MEDIA MARKETING

Posted: February 11, 2021 | News

Social media sites such as Facebook, LinkedIn, Instagram, and TikTok allow businesses to communicate with new clients, raise their brand awareness, and broaden their marketing abilities. As these social media sites continue to play a substantial part of our everyday lives, employers are increasingly embracing these influential platforms to expand their business ventures. With the workforce being more tech-savvy than ever, employers are relying on their employees to use these social media sites on a daily basis. What most employers do not know is that requiring or encouraging employees to use social media for business-related purposes triggers numerous employment law compliance issues. This blog provides a short summary of social media-related employment issues that all employers should monitor.

Mandatory Use of Personal Social Media

Employers often rely on their employees’ social media presence to expand their business social media marketing footprint. Employers taking this approach should be aware of California Labor Code section 980. Section 980 prohibits an employer from requiring or requesting an employee to (1) disclose a username or password for the purpose of accessing personal social media, (2) access personal social media in the presence of the employer, or (3) divulge any personal social media. This means employers must not mandate that employees use or provide access to their personal social media accounts to engage in company business. Consequently, if the employer wishes to expand its social media presence through its employees it should explore creating separate business social media accounts and not require employees to use personal social media accounts. 

Work-Related Social Media Time is Work Time

Social media apps are accessible at all hours of the day. Employers who encourage or require employees to engage in social media marketing must be cognizant of California’s strict wage and hour rules to ensure their employees’ blogging, posting, and commenting does not cause their overtime or reporting time pay obligations to surge.

Employees’ work-related social media activities qualify as work time under California wage and hour laws. Accordingly, nonexempt employees who engage in work-related social media activities will incur additional compensable hours, including overtime, more easily through their social media use. As social media activities are often done at our fingertips, employers face a significant risk that nonexempt employees perform “work” without recording their time (i.e., work off the clock). Labor Code section 1174 requires employers to maintain records identifying all nonexempt employee work hours. When an employee works off the clock outside of their scheduled worktime, the employer must also compensate the employee for the time worked.

Employees accessing their work-related social media accounts for short stints before or after their regularly scheduled work time may also be entitled to reporting time pay. Reporting time pay is a form of wages that must be paid:

1.     Each workday an employee is required to report to work, but is not put to work, or is furnished with less than half of the employee’s usual or scheduled day’s work.  In this case the employee is entitled to a minimum of 2 hours of reporting time pay at the employee’s regular hourly rate of pay.

2.     If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting.  In this case the employee is entitled to a minimum of 2 hours of reporting time pay at the employee’s regular hourly rate of pay.

The California Division of Labor Standards Enforcement has stated in its Enforcement Manual that for purposes of reporting time pay, “physical reporting is not required.” This means that employees who perform work activities from their home may be entitled to receive reporting time pay. Thus, employees who access their work-related social media accounts for a few minutes when they get home after a full workday may have a legal claim to receive overtime pay and/or an additional 2 hours of reporting time pay in addition to the hours they already worked in the day. Similarly, an employee who accesses her work-related social media account for a few minutes on a Saturday is likely entitled to 2 hours of reporting time pay even though the employee did not “work” for 2 hours.

These examples highlight the wage and hour risks employee social media use poses for businesses. Unfettered use of work-related social media accounts can result in substantial liability for employers in the form of overtime and reporting time pay. To limit this risk, employers should set for nonexempt employees, social media hours so the employer can ensure all time spent on social media for work purposes is paid. If work-related social media activities occur outside of those set hours, managers should train employees to record all additional time on their timecard.

Social Media Account Ownership

When the employment relationship ends, disputes over the ownership of the work-related social media profile and its followers, content, and pictures are likely to arise. Although few court cases have addressed work-related social media account ownership, the cases that have addressed the question provide essential guidance for employers.

The most cautionary case for employers comes out of Pennsylvania. In Eagle v. Morgan a former president of a banking education company sued her former employer, claiming that the company wrongfully commandeered her personal LinkedIn account after she was terminated. No. 11-4303 (E.D. Pa. Mar. 12, 2013). During her employment, the former president’s LinkedIn account was accessible to the company and was a key sales generator for the business. After her termination, the company continued to use her LinkedIn account to promote its business. The court ruled that the company’s conduct invaded the employee’s privacy and misappropriated her identity. It reasoned that the company’s conduct was unlawful because it was not authorized by any established social media policy.

The Eagle decision is a warning for all employers who allow employees to engage in work-related social media activities without a clear policy or agreement regarding ownership of social media pages and postings. Without a policy or agreement, employers risk losing access to those accounts—along with any related contacts—if an employee terminates employment.

Cell Phone Reimbursement

Social media now primarily takes place through our mobile devices. When employees use their personal cell phones to engage in work-related social media activities the employer is required under Labor Code section 2802 to reimburse them for that use. The amount of the reimbursement must be a reasonable percentage of the employee’s cell phone bill even if the employee incurred no extra expenses for the cell phone use. Accordingly, very active social media users will be entitled to a larger cell phone reimbursement than employees who engage in limited work-related social media. To avoid the complications of variable cell phone reimbursements, employers may instruct employees to use a work-issued electronic device only when engaging in social media marketing.

 

If you have any questions or concerns about ensuring that your company’s social media activities are compliant with the various employment laws faced by employers, the attorneys at Ferruzzo & Ferruzzo, LLP are available to provide guidance.


This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.

Jacob P. Menicucci

Jacob P. Menicucci, Esq. is an Associate and a member of Ferruzzo & Ferruzzo, LLP's Employment Practices Group.  Jacob litigated numerous employment matters, including lawsuits involving wage and hour violations, discrimination, harassment, and whistleblower retaliation.  Jacob counsels employers to ensure their policies and practices are in compliance with California's ever-changing employment laws.   

 

Mr. Menicucci may be reached by phone at (949) 608-6900 or email jmenicucci@ferruzzo.com