Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to Kylie TenBrook, corporate counsel for Best Western International in Phoenix, Arizona. Her area of practice is employment law. We here at Abnormal Use first encountered Kylie earlier this year at the Hospitality Law Conference in Houston, Texas at which she presented the topic of “Pop Culture Employment Law” (which, in our opinion, included the best reference to Zoolander of the conference). After that, we knew we had to request an interview, which you can find below:
JIM DEDMAN: Generally, from the perspective of an in-house counsel, how has the rise of social media changed employment litigation?
KYLIE TENBROOK: It’s changed it drastically. With the rise of social media, employees are not only saying and doing things in the workplace, they’re also saying and doing things on the Internet, and so you have to be cautious with respect to what your employees are doing and how they are behaving in this other public forum.
JD: What is a social media policy?
KT: Typically, a social media policy will set forth the standards that the company thinks employees should adhere to in using social media, and typically, that touches on anything from behavior that’s expected, to dealing with trade secrets of the company, to dealing with harassment or discrimination. It sets forth the behavior that employees are expected to engage in when using social media.
JD: Now, you mentioned the word “cautious” a moment ago. What are some of the potential disadvantages of a social media policy in the employment context?
KT: Recent litigation with the National Labor Relations Board has focused a lot on social media, restrictions by employers on employees’ social media usage, and employers’ social media policies. The National Labor Relations Act, Section 7, applies to unionized and non-unionized work forces, and it prohibits employers from restricting employees [from] discussing the terms and conditions of their employment, among other things. And that’s really broad reaching under the current board’s spectre. They see almost anything that would be discussing work to be falling within Section 7 of the National Labor Relations Act. And they’ve taken a very aggressive approach with that, going not only after employers restricting employee actions on social media, but also going after social media policies as per se violations.
JD: In light of those concerns, how should an employer navigate those waters and potentially protect its interests if an employee is commenting on the employer on social media?
KT: . . . [W]henever you’re dealing with social media, employees, and employees talking about the employer on social media, you want to be careful. You want to sit back and look at the content of the message, and you want to make sure you’re involving your HR team and your legal team before taking any action. You need to determine whether the content discusses the terms and conditions of their employment, which I would argue is very broad, and likely will, if it’s the employer, but then you also need to make sure that it’s not violating any sort of policies that the NLRB would find unlawful.
JD: So in the absence of a social media policy, what do you think are the best standards and practices for addressing these issues on a global scale for an employer?
KT: In the absence of a social media policy, you need to take a look at what your other policies provide . . . . What do your harassment and discrimination policies say? Interestingly, you do have issues where the two collide: The EEOC stance on what constitutes harassment and discrimination and the NLRB stance on social media. You really need to determine [whether] you are going to foster a workplace that is free of harassment and discrimination even if that goes up against what the NLRB says. You’ll also want to take a look at what your other policies say with respect to, for example, confidentiality, trade secrets, etc. Those policies should apply equally to workplace conduct and social media conduct, which in my view, makes a social media policy unnecessary.
JD: Now one of the popular topics in social media and litigation these days is the use of social media to investigate a claimant’s claims or damages in a pre-existing suit. The underlying claims of which may not have anything to do with social media itself, separate and apart from a social media policy or some of the concerns that you just expressed; what risks do employers face when monitoring employee social media use once that employee is a claimant or a plaintiff in a suit?
KT: Well, there are a couple risks. Usually, those risks come about in the form of hiring discrimination. When employees become a potential claimant, you’re going to be investigating them anyway, and if the social media is available, you should use it. However, your access to it should be limited in the first instance. In fact, I don’t think employers should be friends with their employees on social networking sites. You may find out things about your employees that you don’t need to know, and if you do make an adverse decision with respect to them later, what you saw on social media could be said to be the thing that is causing you to make your decision. For example, if you have an employee who is a certain religion, and you take action against that employee, and on their Facebook site, you’ve seen that they are of that religion, they may claim later that “Well, you’ve made this decision because of my religion.” So, there are some risks.
JD: So, what would you do in a situation where you have pre-existing friendship or relationship with someone who becomes an employee? Is it wise to terminate the social media relationship in light of those concerns, or is there some middle ground there?
KT: I think it depends on the relationship. If there’s a reporting relationship, absolutely, you should terminate that friendship on social media. If there’s not a direct reporting relationship, I think there’s less risk, but to the extent that there’s a direct reporting relationship that really needs to stop.
JD: What about your favorite lawyer on TV?
KT: I love “The Good Wife,” so I would have to say Julianna Margulies. One of my favorite shows. I also thought that “Boston Legal” was great with James Spader.
JD: What is the best depiction of an employment law issue in popular culture film or television in your view?
KT: “The Office.” “The Office” is just an amazing example of what not to do in every single work situation you could ever possibly think of.
JD: Any particular episodes stand out in your mind?
KT: Yes. My favorite one is the one where they each had a card that they put on their forehead identifying the participants as a certain race, ethnicity, etc., and they all had to communicate with each other in an entirely offensive way to figure out what the card on their forehead said. It was so over the top and so bad; it’s my favorite episode of all time.
JD: We’ve written before about “The Deposition” episode where Michael Scott is deposed which is, of course, fantastic. You have previously written about employment issues relating to late night television and Jay Leno in particular. What do you think of Jimmy Fallon’s new show?
KT: I’m very excited. I would rather stare at Jimmy Fallon for an hour than Jay Leno, any day.
BIOGRAPHY: Kylie TenBrook serves as corporate counsel for Best Western International, Inc. in Arizona. Previously, she practiced labor and employment law exclusively.