Is Social Media Helping or Hurting Your Church?

Social media has become the new popular form of communication in the 21st Century. In 2013, 70 percent of churches have a Facebook account and 21 percent use Twitter. The proper use of social media can be a great benefit to your church by providing information to your membership and furthering your involvement in your local community. However, the misuse of social media or an instance of poor judgment in a post by an employee, including pastors, could result in serious problems, including potential legal trouble.

People are more connected to their friends, family, businesses, and the world at large today than they were ten years ago. One of the main reasons for this connectivity is access to and use of social networking sites such as Facebook, Twitter, and LinkedIn. Since 2005, the number of internet users who use social networking sites has dramatically increased across all age groups. Of the adults who are online, 73 percent regularly use social networking sites. The most popular social networking site among online adults is Facebook.

This increase does not just apply to individuals; use of social media has also increased among pastors and churches. In 2013, 70 percent of churches have a Facebook account and 21 percent use Twitter. In 2011, these numbers were 57 percent and 14 percent, respectively. Of the pastors polled, 23 percent use Twitter, 66 percent have a Facebook account, and 22 percent have a personal blog.

As shown by these numbers, due to the prevalence of social media in church communities, facilitating the proper use of social media can be a great benefit to your church by providing information to your membership and furthering your involvement in your local community. However, the misuse of social media by an employee, including pastors, could result in serious problems, including potential legal trouble.

As evidenced above, social networking sites and social media are the new medium in communication. A church Social Media Policy (SM Policy) should to establish clear instructions and procedure on employee use of social media communications with members, especially minors. A clear SM policy, used in conjunction with other church policies, will help reduce one of their largest areas of church liability, particularly churches operating Christian schools: child protection. Church staff should have little to no one-on-one communication with minors through social media. Any church communication regarding a minor should (i) be communicated directly with the parent or guardian, (ii) include the parent or guardian (and potentially a supervising staff member) in the communication, or (iii) be made through an online blog or forum that is open to parents or guardians. Such procedures, if used consistently, would greatly reduce the chances of litigation for, and provide evidentiary proof against, claims of child abuse against the church.

Churches not only need to have a sufficient SM Policy established, but they need to educate their employees that their personal lives and actions reflect on the church, both positively and negatively. As the story below demonstrates, a poor decision is only a smartphone away from being broadcasted over social networking sites and points a bright spotlight on both the individual and the church.

In January 2014, a server at a national chain restaurant posted a picture of a customer’s credit card receipt on the social media site Reddit. Unfortunately, the reason for taking the picture was not because the customer left an overly gracious tip like some other stories posted on social media sites.

The customer was a pastor of a local church who had dined at the restaurant with several members after an evening service. Due to the number of customers, the restaurant added an automatic 18 percent gratuity onto the meal. On the receipt, the pastor had scratched out the amount of the automatic gratuity and wrote “I give God 10% why do you get 18[?]” before signing the receipt as pastor. As in the first example, the picture was reposted on other social media site and internet news sites. The pastor learned about the post from a friend several days later and called the restaurant to complain. Since the post, the server has been fired for violating the restaurant’s own SM Policy, but the pastor now faces public criticism for what she states was a “lapse in my character and judgment.” The Smoking Gun (www.thesmokinggun.com) posted this story and the pastor’s apology to the server on January 31, 2014. Since its posting, over 4,000 comments have been uploaded onto the story’s webpage, the outstanding majority of which are critical of the pastor, her actions, and the hypocrisy of Christians.

Now more than ever, churches and pastors need to be aware of these risks, establish an adequate and legally-compliant SM Policy, and educate their staff on the impact social media may have on the church, for both good and bad. Social Media Policies, like the church’s governing documents and other policies, should be tailored to fit the church and provide sufficient information and guidance to the employees.

One thing a SM Policy should not have is absolute prohibitions on certain social media activities. These general blanket prohibitions of employee activities have repeatedly been found unenforceable due to the fact that they violate an employee’s right to participate in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under the National Labor Relation Act (“NLRA” or the “Act”), enforced by the National Labor Relations Board (“NLRB”). Under the NLRA, “concerted activity” is any activity concerning the terms and conditions of employment. 29 U.S.C. § 157. This includes employee discussions and other communications regarding and related to working conditions, salaries and benefits, etc. and appearing to “initiate … induce or … prepare for group action” with other employees. Meyers Indus., Inc., 882, 887 (1986). Although originally established to protect unionized workers, the NLRB has extended NLRA protection to non-unionized employees where such concerted activity is for the non-union employee’s “mutual aid or protection” in regards to their working conditions.

With the rise in popularity of social media, the NLRB has had to repeatedly review employer SM Policies and determine whether they are unlawfully restrictive. Although NLRB’s decisions have provided guidance as to why certain individual provisions are lawful and other are unlawful under the Act, the legality of an employer’s SM Policy will continue to be challenged and debated in the coming years. Based on the NLRB’s previous decisions, the following list of SM Policy provisions are ones typically found to be unlawful due to their potential “chilling” effect on an employee’s protected activity. This list is not exclusive and is only for example purposes:

• Prohibiting any private social media communications regarding the company and
  its working conditions.
• Prohibiting use of the employer’s name.
• Requiring employer approval of any employee social media postings.
• Prohibiting employees from “friending” or “following” colleagues or co-workers
  on social media sites.
• Requiring employees to report activities or communications of other employees.
• Prohibiting employees from harming the image and integrity of the company.

Historically, the NLRB has refused to assert jurisdiction over churches and their direct employees due the potential violation of a church’s First Amendment rights. However, the NLRB has ruled it does have jurisdiction over separate, related entities which are operated or controlled by religious organizations. Because many churches operate or control integrated auxiliary organizations (i.e. infant care centers, primary schools, middle and high schools, rehabilitation centers, etc.), it would be wise for a church to adopt an overall SM Policy that would not be in violation of the NLRA rules.

Some of the topics a good SM Policy should cover include, but are not limited to:

• A statement of why the policy exists;
• Specific rules, with specific examples, as to what can and cannot be shared on
  social media (i.e. confidential/proprietary info);
• Consequences of failure to follow these rules – i.e. discipline or termination;
• Application of other church policies to the SM Policy (i.e. harassment, no
  expectation of privacy on church computers/network);
• The permanency of social media posts;
• Identification of those approved individuals for church social media posts who
  may speak on behalf of the church;
• Church ownership of intellectual property and social media accounts;
• Guidelines or boundaries of church-related commentary

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers, or Daniel Hebda at djh@simmsshowerslaw.com or Justin Coleman at jrc@simmsshowerslaw.com for legal advice that will meet your specific needs.

(c) Simms Showers LLP 2014

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