By David Walston, Christian & Small Partner
How often and when do you spend time on social media? Whether it’s Facebook, Twitter or reading blogs, the internet has become a primary means of communication.
In the U.S. alone, social networks and blogs reach close to 80 percent of active web users. Approximately 80percent of Fortune 500 companies use social media applications or corporate blogs to communicate with customers, stakeholders and the general online community.
So where are all these people using social media during the day? In the workplace.
This can bring about a few problems that include loss of productivity, disruption of the workplace, questions about the ownership of communications, confidentiality of business information, privacy and confidentiality of communications, and liability for unlawful harassment.
A recent survey of employers found that:
- Approximately 80 percent have social media policies in place.
- Approximately 45 percent permit all employees unrestricted access to social media sites.
- 35 percent actively block employee access to social media.
- 60 percent monitor the use of social media sites at work.
- 70 percent have had to take disciplinary action in relation to an employee’s misuse of social media.
Considering these facts, what’s the emerging problem? Liability under the National Labor Relations Act (NLRA), which gives employees the right “to engage in, or refrain from engaging in, concerted activity for the purpose of collective bargaining or other mutual aid and protection.” In this case, concerted activity means communication, and communication means social media. The NLRA protective is tied to the content of communications.
This means that every employee has the right to comment, whether it’s positive or negative, about the terms and conditions of employment, such as compensation, benefits, promotions/demotions, disciplinary actions, working conditions, employment policies and commentary on management/supervisors/co-workers.
Here’s an example: If an employee writes, “My boss is a jerk” on Facebook, it is protected by the NLRA if it is a continuation of a communication initiated at work with other employees or if it’s joined by co-workers.
The NLRA is traditionally enforced in two ways:
1. Retaliation — You cannot impose an adverse employment action in retaliation for an employee engaging in protected concerted activity (communication).
2. Disparate treatment – You cannot discipline an employee for complaining about working conditions during working time if you do not, for example, discipline an employee for discussing the Iron Bowl during working hours.
Recently, the NLRA has made a new attack on employment policies called “chilling.” This is an employment policy, as opposed to an adverse employment action, that can be construed by an employee to prohibit concerted activity (communication). They have defined several unlawful “chilling” policies, such as the following examples:
- “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.”
- Prohibitions against “revealing, including through the use of photographs, personal information regarding co-workers, company clients, partners or customers without their consent.”
- Prohibitions against any social media post that “constitutes embarrassment, harassment or defamation of the [company] or of any [company] employee, officer, board member, representative or staff member.”
- Prohibitions against “employees making disparaging comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”
- Requiring employees to be “courteous, polite and friendly” to customers, vendors, suppliers and fellow employees and not to use “language which injures the image or reputation of the [employer].”
According to the NLRA, these types of policies are too general and non-specific. There are better ways to protect your company, but employers are caught between a rock and a hard place because employment policies are designed to be general. To meet the NLRA’s expectations, a personnel policy handbook would have to be so long and detailed that it would likely exceed the data storage capabilities of most devices.
Despite this challenge, there are some things employers can do to protect themselves:
- Couch policies in terms of protection against legal liability of protection of interests, such as unlawful harassment, loss of trade secrets, protection of co-workers’ personal privacy rights and federal and state privacy laws.
- To the extent possible, specify the information that is sought to be protected, including personal identification or medical information, confidential business plans, “trade secrets,” and information that is subject to legal disclosure laws, regulations and orders.
- Publish a disclaimer with a policy that says: “Nothing in this policy is intended to restrict employees’ rights to engage in concerted activities protected by law.”
- Train your employees about your social media policies so they understand what you consider to be proper and improper use.
- Train your supervisors regarding the appropriate action, or inaction, related to an employee’s use of social media.
At least 47 percent of employers with social media policies have not updated them in the last year. For these companies and those creating new policies, have your social media policy reviewed and updated by legal counsel.