By Daniel J. Park, Esq.
This is the second article of a two-part series.
With social media accounts on Twitter, Instagram, and LinkedIn becoming an increasingly cost-effective form of advertising, it is common for businesses to hire in-house social media managers. Here are two areas to consider with respect to social media managers.
Who Owns a Company’s Social Media Account?
Businesses with their own social media accounts should set guidelines to clarify that social media managers are merely managing the business’ accounts. The company maintains ownership of those accounts, including all its followers.
A company’s social media account should set up their login and registration using company email accounts. When designated users leave employment, a business should shut down the departing employee’s access to the company social media accounts and reset passwords. If a business social media account was originally set up through an employee’s personal account, it should be properly set up again through an appropriate company email account.
Employee Work-Related Social Media Time is Compensable.
Social media sites are accessible at all times during the day. The nature of some businesses require a good social media manager to be cognizant of trending items on social media and to be able to post instantaneously. The failure to timely post to ride the wave of a trending topic or respond to a topic affecting the business or industry can prove extremely costly.
Work-related social media activity qualifies as work time under California wage and hour laws. Accordingly, nonexempt employees who engage in work-related social media activity 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. Cal. Lab. Code § 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 compensate employees who are scheduled to report to work but who are not put to work or furnished with less than half of their usual or scheduled day’s work because of inadequate scheduling or lack of proper notice by the employer. The provisions of the law regarding reporting time pay are as follows:
- Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, he or she must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
- 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, he or she must be paid for two hours at his or her regular rate of pay.
“Reporting time pay” constitutes wages. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal. 4th 1094). In Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167, the court held physical reporting was not required in order to come within the “reporting time pay provision.” In Ward, the court identified several situations that trigger “reporting time pay,” including:
- Physically appearing at the workplace at the shift’s start;
- Presenting themselves for work by logging on to a computer remotely;
- Appearing at a client’s job site;
- Setting out on a trucking route;
- By telephoning the store two hours prior to the start of a shift. (Id. at . p 1185.)
Moreover, the California Division of Labor Standards Enforcement also stated in its Enforcement Manual that, for purposes of reporting time pay, “physical reporting is not required.”
What all of the above means is that employees who perform work activities from their home may be entitled to receive reporting time pay.
Therefore, social media managers perform work-related social media activity even for a few minutes after their shift ended for the day may have a legal claim to receive overtime pay and/or an additional two (2) hours of reporting time pay in addition to the hours they already worked in the day.
Businesses should set social media hours so the employer can ensure all time spent on social media for work purposes is paid. If work-related social media activity occurs outside of those set hours, a supervisor should train employees to record all additional time.
Employee Use of Personal Mobile Devices for Work Purposes is Reimbursable.
It is no secret that social media activity primarily takes place through mobile devices. California employees have a right to reimbursement from their employers for work-related expenses (Cal. Lab. Code § 2802(a)). If the employee uses a personal mobile device or home wireless internet to conduct work-related social media activity, employers must pay some reasonable percentage of those expenses. (Cochran v. Schwan’s Home Serv., Inc., 228 Cal. App. 4th 1137, 1140 (2014).)
As a best practice, an employer should provide an option for an employee to use a work-issued mobile device to conduct social media activity. If an employee declines the work-issued device, an employer should calculate and pay a reasonable percentage of the employee’s cell phone bill including data, internet service provider bill for work-related use, and other related activities.
As described above, social media activity for businesses brings about several areas for consideration with respect to employment law. If you need new policies (or assistance revising your current ones), have questions about compliance, need assistance setting up your documentation procedures or determining whether there are areas of potential exposure under the Labor Code, BG+W is ready to help and is only a phone call away.
Daniel J. Park, Esq. is a Senior Associate Attorney at Bradley, Gmelich & Wellerstein LLP. Mr. Park is experienced in all aspects of employment law and workplace matters, including class action wage and hour, employment litigation, bankruptcy litigation, and general contract law matters.
Prior to joining the firm, Mr. Park served as a Complex Litigation Associate Attorney at a law corporation in Pasadena managing an extensive caseload of consumer-sided class action wage and hour and representative actions from initiation to settlement in state and federal courts across California. He also represented many small business and real estate debtors in Chapter 11 bankruptcy litigation matters.
Prior to practicing law, Mr. Park served as the Chief Financial Officer and was on the Board of Directors for an organization created to assist homeless families in finding employment and permanent housing. He also served on the Board of Directors for a foundation that raised capital funding for minorities and low-income families for accessibility to higher education. email@example.com