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Will Your Social Media Policy Get You Sued?

James Chiodo, Certified Information Privacy Professional CIPP/US

The National Labor Relations Board stepping up charges against employers.

Social media has been a welcome advertising and marketing partner for many businesses.  It has become an important tool in how businesses recruit and attract new business and new employees.  Social media has opened up many doors, allowing companies to reach an astounding number of people via sites like Facebook, Twitter, Snapchat and Instagram…and the list grows longer every day.

As the overwhelming evidence of social media advertising becoming a profit-making venture came to light, many employers encouraged their employees to use social media to reach their family and friends.  The concept was great – additional free advertising.  However, everything free usually has a price.  And that price is the cost of employee remarks that are neither flattering nor business generating.

Normally, to counter any type of employee issue or threat that may have a negative impact on the business, an employer simply needs to create a policy and enforcement measures to deal with it.  However, it is these employer-created social media use policies that are placing many businesses in hot water with the National Labor Relations Board (NLRB).
Many companies have been charged for “directing” an employee’s ability to have a conversation online or to voice their opinions about their employer via company policy.

Employers reacting to the negative postings and conversations of employees considered it their right to fire the offending employees.  The employers who chose to fire their social-media-posting employees found themselves defending their actions against allegations of violating the employees’ right to free speech.

As a result, the NLRB has been actively reviewing employer social media policies to determine if they indeed violate an employee’s right to engage in “protected concerted activity.”  The crux of the issue lies in determining if any conversation online about an employer is protected under “protected concerted activity.”  What does “protected concerted activity” look like?  According to the NLRB, “protected concerted activity” is defined under Section 7, which states:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” -Sec. 7, NLRA. This also means that employees have a right to discuss salaries, benefits and any other employer policies without fear of retribution.

To determine if online remarks made by employee(s) are under the umbrella of the “protected concerted activity,” the NLRB applies the following questions to the situation:

Is the activity concerted?

Two or more employees working together to improve their company’s working conditions or wage policies constitutes “protected concerted activity.”  However, if a single employee is working on the behalf of others or if other employees were consulted before the online action was posted, it also becomes a “protected concerted activity.”

Does it seek to benefit other employees?

Is the posted activity something that will benefit more than just the employee posting the information?  For example, will the result(s) of the action benefit company employees in terms of pay, hours, workload, safely issues or other employment-related areas?  If it is nothing more than a rant or complaint, it will not be protected under the NLRB rules.

Is it carried out in a way that causes it to lose protection?  Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product or revealing trade secrets, may cause concerted activity to lose its protection.

Employers creating or revising social media policies need to be familiar with the NLRB guidelines.

• Do not use language that prohibits employees from discussing their jobs, complaining about the company or making unflattering remarks about the company in general, its policies and/or its procedures.

• Asking employees and/or applicants for their social media account logons and passwords is dangerous territory unless you have a legitimate business reason that your company can easily defend and that is clearly spelled out in the company’s social media policy.

• Be specific about the information that employees may not post, reveal or share online or anywhere else.  Just stating that trade secrets, client lists and contract information needs to be kept confidential isn’t enough.  It is important to be specific, as there are areas of an employee’s employment arrangement – such as wages, bonuses and perks – about which they have a right to post on social media. Being vague will only complicate matters.

• Within the policy, provide employees with examples of inappropriate content.  For example, postings that can be construed as bullying, discriminatory, libelous or retaliatory in nature would fall under inappropriate content.

 The policy may not deter, discourage or forbid employees from “friending” each other on any of the social media platforms.

Employee Behavior and Non-Disparagement Policies

The NLRB stunned many employers by ruling that at least a certain amount of disrespectful and offensive behavior is protected by the employee’s Section 7 rights. See Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.
http://www.scribd.com/doc/260742549/Perez-Pier-Sixty#scribd

The NLRB is targeting those policies that prohibit employees from disparaging the employer, co-workers, management, customers and suppliers.  The NLRB considers these types of policies to be overly broad and perhaps a form of unlawful interference. It is obvious at this point in time that the determination of any policy is uncertain, and any doubt in employer policies will likely be ruled in favor of the employee and against the employer.

Many employers have policies that require employees to treat co-workers, management and customers with respect and not to use profanity, be rude, be disrespectful or engage in other socially unacceptable behavior.  Now they find out that the NLRB has in some circumstances ruled in favor of protecting rude, harassing and offensive behavior to preserve the protected rights of employees. So employers who have social media policies that on the surface seem reasonable by traditional social standards could very well find those policies considered to be overly broad, restrictive and unlawful interference and not upheld by the NLRB or the courts.

Review Your Confidentiality Agreements

he NLRB takes the view that employees have the right to discuss almost any topic related to their employment with other employees as well as with third parties, including the public. If your confidentiality agreement lists employee wages and benefits as confidential information, you may be surprised to find that the NLRB will likely find such policies in violation of the law.

Keeping an Open-Door Policy

One of the other things employers can do to minimize the risk of negative social media comments from employees is to have an open-door policy that allows employees to ask questions and get answers from management.  While employers are in no way obligated to reveal everything about their business actions, maintaining a place where employees can have their complaints or questions addressed or at least heard is a step in the right direction in terms of reducing criticism and complaints.

The Internet and social media are here to stay, and under current regulations employees being able to voice their opinions about their employers are also here to stay.  Just remember that a well-crafted approach to your social media policy is necessary to protect your company against future claims.

Notes:

The National Labor Relations Board (NLRB) is an independent agency of the United States government. It investigates and corrects unfair labor practices.  Its board consists of five members and a General Counsel.  All members, as well as the General Counsel, are appointed by the President of the United States with the approval of the Senate.

The National Labor Relations Act (NLRA) applies to many, but not all, private employers, and protects the right of employees to act together to address conditions at work, with or without a union.  For more information on whether the NRLA applies to your company, see
http://www.nlrb.gov/rights-we-protect/jurisdictional-standards.

If the NRLA applies, you may not prohibit all personal use of work email, Internet and other technology, because doing so may interfere with employees’ rights under the NRLA to organize.  Some state law also guarantees employees the right to organize.

The laws of some states prohibit employers from taking actions against employees on account of their lawful conduct away from work, so discipline for actions away from work in such states would properly be limited to such things as an employee disclosing company confidential information from a home computer.  Although the wording above concerning accessing and monitoring employee email is broad, this is a developing area of the law under federal law, and state law varies, so employers should proceed with caution and purpose when accessing and monitoring.

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