Legal Issues

Beyond the NLRB Scare: Why Your Workplace Needs Smart Social Media Policies

Susan Keating Anderson

By Susan Keating Anderson

Once considered to be something of a passing fad, social media websites such as Facebook and Twitter have become a regular part of many people’s lives – and it’s not just teenagers who are connecting with peers online; adults are networking, too

In fact, as research statistics from Nielsen studies show, the number of Americans age 50 and older who visit social media sites is twice that of the 18-year-old-and-younger group.

American adults are “tweeting,” “Facebooking,” “getting Linked in” and blogging not only from home but also at the office during work hours, using employer-owned equipment and even discussing work-related issues – sometimes singing the praises of their employers; other times, not.

Aided by the increasingly widespread availability of free WiFi and the prolific use of PDAs and other smart phone devices, people now have easy access to social media and, thus, more opportunities to speak their minds online to large audiences. So what does the proliferation of Facebook, Twitter, MySpace, blogs and other social media sites mean for today’s employer?

In short – a great deal.

Employers are scrambling for answers

With so many HR/Facebook-related scuffles being reported in the news media, employers are scrambling to figure out how to deal with social media issues.

Should they implement policies that regulate employees’ social media usage in the workplace? Can they extend those policies to social media postings done on personal time but somehow related to work? Is it better, if not simpler and easier, to do nothing and just hope nothing goes wrong?

It’s an issue that presents a proverbial minefield of legal and ethical hazards, not to mention potential civil liability, if the murky trail of this dynamic, instantaneous communication method isn’t navigated carefully. This is no better reflected than in a recent National Labor Relations Board (NLRB) complaint dealing with social media.

In November 2010, the NLRB charged American Medical Response of Connecticut Inc. (AMR), an ambulance company, with improperly terminating an employee for making negative comments, including the use of a few colorful names, about her supervisor on her personal Facebook page. Other AMR employees responded to these comments and an online chat ensued.

The NLRB challenged the employee’s termination by alleging that, by criticizing her supervisor to other employees, the employee was engaged in concerted activities protected under the National Labor Relations Act (NLRA). Compounding the issue is that the employee had been denied union representation during a disciplinary proceeding.

Though the AMR case was resolved between the parties in January, the NLRB complaint serves as a frank reminder that employers need to be careful when regulating employees’ social media postings, particularly when such regulations could arguably restrict employees’ rights to engage in protected concerted activity protected under the NLRA.

NLRA policies apply to ALL employees

Here’s something else to keep in mind: non-unionized employers misguidedly believe that regulations under the NLRA do not apply to them. They’re wrong. The act’s protection of concerted activity applies to all workplaces, not just those that are unionized.

Employers do have the right to monitor employees’ Internet, e-mail, and other technology use while employees are using employer-owned equipment and software. It is imperative, however, that employers implement written acceptable use policies to inform employees of the permitted scope of such use. It is very important that such policies also inform employees that their usage will be monitored by the employer.

Policies should include a clear, direct statement that employees should have no expectation of privacy in their use of employer-owned computer equipment, e-mail accounts, Internet providers, software and cell phones and that the employer can monitor an employee’s use with or without prior notice to the employee.

Things get a bit muddier, however, when it comes to regulating social media usage by employees. Often, employees post to social media outside of work hours while in the comfort of their own home; yet, some of these posts may be work-related even if not done on work time or with employer-owned equipment. Employers do have the right to regulate such work-related posts; however, as the AMR case highlights, this right is not unlimited.

What your social media policy should include

Whether or not an employer thinks its employees are using social media (trust me, they are), employers must be proactive by addressing this issue through a written policy. This policy should include, but not be limited to, provisions that:

  • Prohibit use of employer-related information in any kind of employee postings;
  • Prohibit the disclosure/use of any sensitive, proprietary, confidential or financial information about the business or its clients;
  • Prohibit the employee from implying the endorsement of the business in any statement or posting;
  • Prohibit the employee from engaging in conduct that would violate the employer’s other workplace policies, such as anti-harassment and anti-discrimination policies; and
  • Inform employees that policy violations may result in discipline up to and including termination of employment.

These policies can get tricky when they contain vague, broad-based prohibitions against engaging conduct that arguably is protected under the NLRA.

Sometimes, the line is less than clear

For instance, the policy in question in the AMR case prohibited employees from making “disparaging, discriminatory, or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” As part of the settlement of the case, AMR agreed to revise this “overly-broad” language.

However, the line between valid prohibitions against harassing or threatening posts and those that violate an employee’s right to engage in protected concerted activity is less than clear. Accordingly, employers need to be careful when drafting policies regulating social media use and avoid broad-based prohibitions that arguably trample on an employee’s protected right to engage in criticism of their supervisor or workplace with other employees.

Also, don’t forget that training on these policies – for managerial and non-managerial employees alike – is vital. If employees do not know about or understand the policy, they cannot reasonably be expected to abide by it or, in the case of supervisors, enforce it.

As the countless number of Facebook indiscretions reported in the news reflect, it’s far too easy to forget that what is posted online, even if it is protected by so-called privacy settings, is rarely anonymous, is easily shared, and, in most cases, remains permanently out there in cyberspace.

For these reasons, acceptable use and social media polices are a must-have for employers in today’s world of web 2.0.

Susan Keating Anderson is a labor and employment attorney at Walter & Haverfield in Cleveland. She provides general counsel to employers on a variety of workplace matters and HR issues, and has conducted numerous in-services to train employees and employers on best employment practices and procedures. In her practice, Susan has successfully defended employers against charges of discrimination, sexual harassment, wrongful discharge, defamation, and workplace privacy violations. Contact her at sanderson@walterhav.com.
  • http://twitter.com/Rheadhunter Rob Dromgoole

    Many recruiting departments are encouraging the use of ‘come work with me’ widgets and in addition, we want people to share job postings for their employer to generate referrals. Are you asking employees not to share job openings and asking thier contacts to join an organization?