Social Media Employment Law

Statements Are As Important As Actions Are In Sports Too

I often like to use the world of sports as a backdrop for employment law and social media points.  After all, athletes are essentially employees of the teams they play for, right?  And here’s another recent case in point of how monitoring social media use of an employee (athlete) can sometimes be a good thing for the employer (team).

With all the hoopla of the World Cup and whatever extra time/stoppage time there has been over the past couple of weeks, an interesting NFL development came in slightly under the radar.   Jimmy Graham of the New Orleans Saints has been in a dispute with the team over whether he should have been offered a “franchise tender” (essentially, a pre-determined one-year salary that has been previously established in the players’ collective bargaining agreement) as a “wide receiver” or as a “tight end.”   The difference means several millions of dollars to Graham, as wide receivers happen to occupy a higher slot in the table of franchise tenders (approximately $12.3 million versus $7.035 million for tight end franchise tenders).

No need to get lost in the weeds of all the arguments, but suffice it to say that the Saints organization claimed that Graham is listed as a tight end by the team, was drafted as a tight end by the team, that tight end is his principal position, and, therefore, he should be given a franchise tender for 2014 at the (lower) tight end rate.  Graham, as you would expect, was claiming in his dispute that he should be classified as a wide receiver with the (higher) wide receiver rate because he spends about two-thirds of his time on the field lining up in similar formations as a wide receiver would.

Are you still here?

Where’s the social media, Mike?

Thanks for staying with the post.  You see, Graham apparently listed himself as a tight end on his Twitter account.   Ouch.   Good thing someone thought to check his profile when involved in Graham’s salary dispute.

Last week an arbitrator ruled that Graham was what he said he was: a tight end.

Employer Take Away:   What should you as an employer take away from this development?

Yes, you should heed all of the advice about the way in which your company mines employee social media accounts, and make sure there are no legal/privacy rights being infringed.  With that said, there is no reason you should not continue to use social media to your benefit where applicable and appropriate.  Just by way of a couple of examples:

1.         Do you have a former independent contractor who is now claiming to be an “employee” to collect unemployment benefits or some other legal protection?  Check LinkedIn, Facebook, and the other social media accounts to see if the individual refers to himself or herself as a “freelancer” or “consultant” or, better yet, “independent contractor.”

2.         Do you have a former or current employee who claims to be misclassified as an “exempt” employee because the employee says that he or she only does grunt work, rather than perform management-type duties?  Check LinkedIn, Facebook, and the other sites to see if online resumes and profiles tend to highlight the management duties the employee believes he or she performed during your employment.

Mine, but mine cautiously. You might find a gold mine of words.

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