The following comes from an article entitles “Social Media & EPLI: Minimal Impact—So Far” by Chad Hemenway from PropertyCasualty360.com. 

Based on its post-IPO performance, the value of Facebook might have been significantly overstated by its overly optimistic investment bankers.

And based on the assessments of a broker and two major carriers that write the coverage, the predicted massive impact of social media on Employment Practices Liability Insurance (EPLI) claims may also have been overstated.

While some observers expected the industry to be dealing by now with a barrage of claims stemming from social-media misdeeds, the market has not seen much, if any, social media-related EPLI activity.

Phil Norton, head of the Professional Liability practice at broker Arthur J. Gallagher, says EPLI claims generated by the use of social media “might be a blip, but nothing hugely significant.”

Melissa Mattioli, vice president of Employment Practices Liability for Liberty International Underwriters, attended seminars on the subject to prepare for a possible onslaught of claims. But so far, the insurer “has not yet seen any exposure,” Mattioli says. “It hasn’t taken off yet” as many anticipated, she adds.

Chartis, another major underwriter of EPLI coverage, also has not seen this type of claim emerge at any great frequency, according to Joni Mason, senior vice president and Employment Practices Liability product manager.

But Mason says there is no doubt that social-media EPLI claims will surface more frequently in the future.

Social media can create “a blurring of lines between work relationships and social activity,” she says. “It’s uncharted territory for employers, and there is little guidance” about whether a person’s activities on social media can be deemed work-related or simply social, outside-of-work actions.

GOING INTO LABOR

As companies craft their social-media policies—with input from their risk managers, brokers and carriers—it’s important to make sure the rules expressed stay on the right side of the National Labor Relations Board (NLRB)—the federal agency responsible for safeguarding employees’ rights to organize into unions.

The NLRB “is taking a strong, activist position” on policies that might infringe on employees’ right to take collective action.

On May 30 the NLRB issued its latest in a string of reports by its acting general counsel, Lafe Solomon, focusing on social-media-usage sections in employers’ handbooks.

The latest report parses the policies of several unnamed companies in an effort to provide guidance on what types of social-media regulations can potentially violate the rights of employees—and lead to EPLI claims in event of a termination.

In one of the cases highlighted in the report, the NLRB quotes the social-media policy of a motor-vehicle manufacturer: “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal nonpublic company information on any public site.”

The NLRB was having none of it. “We found various provisions in the above section to be unlawful,” Solomon writes. “Initially, employees are instructed to be sure that their posts are ‘completely accurate and not misleading and that they do not reveal nonpublic information on any public site.’ The term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees that would be protected so long as they are not maliciously false.”

The NLRB’s influence as a federal agency, says Longmore, does influence the opinions of judges, and since the organization is taking social-media policies so seriously, so should employers—and insurers.

“No one has made an issue of this like the NLRB,” she says. “You need to listen when they speak.” The organization’s reports, she adds, give companies, employees and legislators alike “a prompt to listen and an authorization to act in a concerted manner.”