“As we know, the (communication) revolution will be more than ‘televised’ because it is posted, liked, blogged, tweeted and linked, anytime, anywhere.” (Social Media and the Workplace: Virtual Worlds and Legal Realities in 2011 by Luce Forward)
Think your employees aren’t on Twitter (or Facebook, LinkedIn, or any of the countless other social media and networking platforms)? Think they aren’t talking about your company? Think again. Even in the best of cases, with the most responsible and loyal employees, questions are bound to arise around social media usage about the line between personal and professional use, between acceptable and unacceptable comments, between constructive criticism and outright harassment.
A social media policy can answer many of those questions – and set the rules for dealing with transgressions before they happen.
But that’s easier said than done. Sometimes there’s no hard line between appropriate and inappropriate employee behavior, and attempts to draw one are often rebuffed by The National Labor Relations Board – the government agency that investigates and remedies unfair labor practices – as infringing on employee rights and, as such, unlawful. And the problem isn’t going away soon: a mid-year survey by the U.S. Chamber of Commerce found that the NLRB had already reviewed more than 129 cases this year involving social media.
What’s so important about a social media policy?
A policy manages employee time and expectations, protects your brand and corporate image, and ensures that the NLRB can verify that you set clear and appropriate boundaries on what employees can and cannot say and do in their social media activity.
“Employers need proactive social policies in place to avoid any unpleasant involvement with the NLRB’s enforcement, potential claims by the employee, or negative public comments about its products, services and clients. Policies should serve to educate the employee about their rights, protect the rights of the employer and must be carefully drafted to comply with the existing laws and current enforcement.” (The Best Defense is a Good Offense: Proactive social media policies and what they can do for you by Len Brignac | King, Krebs & Jurgens, PLLC)
Why not just forbid employees from any mention whatsoever of their employer on Facebook, Twitter and the like?
Because it won’t work. Like it or not, social media is here to stay, and pushing draconian policies down the throats of workers is akin to telling them they’re not allowed to use the telephone for personal calls at the office AND at home. More importantly, the NLRB generally doesn’t look too kindly on employers who fire workers based on overly restrictive social media policies.
For example, in one instance “the [NLRB] found that an employer’s social media policy was over-broad (and therefore unlawful) because it prohibited employees from posting pictures of themselves in any media, online or offline, that depicted the company in any way, even by simply including a company uniform or corporate logo… because it would effectively prohibit employees from engaging in protected activity, such as posting pictures of lawful picketing that used a company name or logo.” (NLRB Offers Useful Guidance for Employers In Summary Report on Social Media Cases by Franczek Radelet P.C.).
In another, the NLRB said that a company’s social media policy “violated Section 7 of the NLRA because it could have a ‘chilling’ effect on protected concerted activity. Essentially, the NLRB claimed a company with a social media policy that limits or discourages protected employee activity may be subject to a charge of unfair labor practice, even if an employee is not disciplined under the policy.” (Facebook Posts and Employment Decisions by Gammon & Grange, P.C.)
The bottom line on policies?
“Social media policies may violate labor laws… [T]he National Labor Relations Act protects all employees’ rights to engage in concerted protected activity for their mutual aid and protection. This means that if employees start a chat group on the internet to complain about how much you pay them, they have engaged in protected activity and you cannot fire them. If you have a policy against such activity, that policy is unlawful because it interferes with their right to communicate with co-workers about the terms and conditions of their employment.” (What’s Not To Like About Social Media? by Sands Anderson)
What if the policy is good and sets the appropriate limits? Can an employer terminate an employee who crosses the line and posts negative comments about her boss in a public forum like Facebook?
Not necessarily, because in many instances, the National Labor Relations Act gives employees the right to criticize their employers, in whatever forum they wish.
The NLRB of late has adopted a broad view of what is considered “protected speech” and thus protected by the NLRA: “In at least four cases, the NLRB overturned the termination of employees based on their social media activities because the activities involved active, online conversations among multiple employees regarding work conditions, ‘concerted activities’ for which the employees could not be terminated under Section 7 of the NLRA.” (Social Media and the National Labor Relations Act: A Trap for Unwary Employers by Bryan Cave)
In another case, the “… NLRB sent a clear message to all employers that it will prosecute companies that attempt to stifle employees from communicating about their conditions of employment with their co-workers, regardless of the location or forum. As such, employers are clearly on notice that whether their employees are discussing their conditions of employment in the lunch room, by a water cooler or on a social media site, employees may be engaging in protected activities for which there can be no interference.” (Settlement in NLRB Facebook Case Sends a Message by Fox Rothschild)
But it isn’t all bad. An employee who criticizes his employer online is not automatically protected under the NLRA, and the NLRB has ruled in favor of employers who terminated workers for inappropriate online activity in several cases, including earlier this year when it “opined that it was legal for the Arizona Daily Star to fire a reporter who posted ‘inappropriate and offensive Twitter postings’” because they “’did not involve protected concerted activity.’” (“TWEET!” You’re Fired by Warner Norcross & Judd)
In a separate incident, an NLRB Administrative Law Judge ruled that an automobile dealership did not wrongfully terminate an employee for his Facebook postings. Although the ALJ agreed with the NLRB that a portion of the postings were “a protected concerted activity,” other postings “had nothing to do with the terms and conditions of employment and were not protected. The ALJ concluded that the salesperson was fired for the [unprotected] postings, and the termination was not unlawful.” (Social Media Update – New Employer-Friendly Ruling by the NLRB by Manatt, Phelps & Phillips, LLP)
Perhaps even more significantly, it would appear that the NLRB is adopting a measured approach to its interpretation of protected activity: “in a number of cases, the NLRB found that the use of social media to simply air individual gripes was not protected activity.” (Helpful Guidance Summarizing the National Labor Relations Board’s Position on Social Media Issues: Two Reports and One Decision by Epstein Becker & Green, P.C.) This is good news for employers, but it underscores the need to analyze on a case-by-case basis what they consider to be inappropriate social media activity, before they take any action with respect to employee termination.
What are the takeaways for employers?
- “Develop a clear policy addressing their employees’ use of social media both within and outside the workplace.” (Interfering with Employee Speech by Fox Rothschild)
- “Implement an effective training program on how your employees should use social media.” (10 Social Media Must Haves For Your Corporate Compliance And Ethics Program by Sheppard Mullin Richter & Hampton LLP)
- “Review [other] policies for over-broad statements regarding employee speech … including (1) the company handbook, (2) policies on confidentiality or nondisclosure, workplace ethics, company loyalty, computer or information systems use, or social media use, and (3) other company statements that bear on employee conduct. (You Can’t Say That! The Danger of Overbroad Social Media Policies by Kim Licata | Poyner Spruill)
- “Use caution when considering discharging or disciplining employees based on comments made on social media sites such as Facebook or blogs.” (NLRB Settles Charge Claiming Employee was Fired for Facebook Post by Ford & Harrison LLP)
- “Consult with legal counsel in determining the best response to even the most egregious employee conduct in the social media realm.” (NLRB GC Outlines Federal Protections for Employee Social Media Activity by International Lawyers Network)
Related Commentary and Analysis
- Company Use of Social Media Best Practices: Checklist (Practical Law Company)
- Managing Employee Use of Social Media (Schwell Wimpfheimer & Associates LLP)
- NLRB Announces Another Settlement Protecting Employee “Facebook Complaints” (Womble Carlyle Sandridge & Rice, PLLC)
- FTC Takes Aim at Misleading Online Marketing: Here’s How
- Legal Issues Surrounding Social Media Background Checks (Sheppard Mullin Richter & Hampton LLP)
- Employee Background Checks: A Double Edged Sword for Employers (Collins & Collins, P.C.)
- NLRB Report of the Acting General Counsel Concerning Social Media Cases (August, 2011)