“Social media has irreparably blurred the line between one’s personal persona and one’s professional persona,” says Jon Hyman in Workforce magazine. If you consider that a recent Pew Research Center survey of 1,520 U.S. adults that found 79% of those online use Facebook, 24% use Twitter and 29% use LinkedIn, chances are pretty good that most of your employees are active on one or more social media platform. What does that mean for you, the employer?
Status updates and tweets are easy to share: What was for dinner last night? Who won the Little League game? Which bloggers get the most “likes?” Here’s what’s wrong with the boss’s new policy for scheduling time off … Wait, what? There’s that blurry line between personas. Social media’s popularity makes it easier than ever to check in on employees’ lives outside of work (or harder than ever to avoid it). And it’s possible that not everything an employee says or does will thrill an employer.
You may wonder if the First Amendment protects an employee’s speech online, or if the National Labor Relations Board (NLRB) always sides with employees in disputes. Do you have the legal right to keep online tabs on your workers’ activities and posts, or should you just avert your eyes and hope for the best?
Employers often wonder what actions they can legally take in response to employees’ social media posts, particularly the ones about the company or posts highlighting opinions or activities the employer finds questionable. Let’s look at what you can do to protect and educate everyone involved.
- Know What’s Protected and What Might Not Be
It's all about "concerted activity." Section 7 of the National Labor Relations Act (NLRA) protects concerted action where employees share information about (or bring management attention to) their terms and conditions of employment. Even though the NLRA does not specifically address social media, the NLRB considered social media posts to be a valid forum for concerted activity. The law applies to both union and nonunion employees.
The Board “has ruled that numerous employers’ social media policies are illegal because they were written or enforced in such a way that they discouraged or prohibited employees’ ‘concerted activity.’ For example, in Triple Play Sports Bar and Grille, the Board found that an employer couldn’t fire employees for posting comments that were critical of it for making mistakes on their tax withholding, leading to the employees owing additional taxes,” says HR Hero’s Technology for Hr blog.
The bottom line for employers? It’s not the medium, it’s the message that matters. Concerted activity, even in the form of an embarrassing, vulgar or snarky social media post, could very well be protected under the NLRA.
What might not be protected? Things like harassing or threatening posts targeting a fellow employee or a customer, knowingly posting false information (what the NLRB calls “malicious” posting) and individual gripes are not necessarily considered concerted activity. And what about the First Amendment? It only applies to the government restricting free speech, not private employers.
- Create, update and distribute an enforceable social media policy
According to Pew, 32% of employers have a social media use policy. Even if your organization has such a policy, it’s critical that the policy actually be up to date with current legal guidance. Your policy needs to set out guidelines for employees about use of social media during and after work hours while not, “interfering with, restraining or coercing employees in the exercise of their Section 7 rights,” according to the NLRA Section 8 (a) (1). That means your policy can’t explicitly or implicitly prohibit workers from posts that are likely protected under Section 7 and it can’t include policies created in response to union activity (organizing, voting, etc.).
Be sure your policy is not vague or overly broad: Define terms like “inappropriate” and “defame,” for example. While it can be helpful to review other employer’s policies for ideas, be sure yours is unique to your company – don’t just cut and paste. And always seek legal counsel when writing and revising your social media policy (which you should do annually if possible), says Tina Maiolo in her overview of social media in Daily Labor Report.
Human resources websites and NLRB memos are good places to find examples of policy language. For example, you can find a discussion of the Triple Play policy’s provisions that do and do not violate the NRLA on the site HR Hero.
- Educate your employees
Everyone hopes their employees will use common sense and be professional. Foster these qualities by making sure your employees understand your social media policy (and updates to it). Include specific examples when possible to make key points crystal clear.
It’s important that employees know your policies on things like harassment, confidentiality, appropriate use of company computers, maintaining trade secrets, etc.
Finally, it’s a good idea to make sure everyone understands just how far-reaching and irreversible social media posts are (this applies to all generations in your workplace, even “digital natives”).
- Know your legal limitations
As we said at the beginning, the line between personal and professional personas is blurry thanks to social media. Even if employees don’t post trade secrets or complain about their wages online, their posts about day-to-day activities and comments about personal beliefs or politics are visible to the world, including their employer. “If you obtain such information via social media and subsequently pass over the employee for a promotion, give him an unflattering performance appraisal, or do anything that may be perceived as unfair treatment, you risk the employee filing a harassment or discrimination claim,” says Susan Hartmus Hiser on Technology for HR Blog. Likewise, if you discover evidence of one employee harassing another through social media, you may be required to report it to your superiors, according to Hiser.
Employee off-duty conduct is protected to some degree in many states, though protections range from smokers’ rights to all off-duty legal activities. In some cases, illegal activity may have some protections too, “unless the off-duty illegality has some concrete impact on the employee's work or the employer's business interests. An employer would be entitled to look into the drunk driving arrest or conviction of a bus driver or the embezzlement conviction of a bank employee, for example,” according to NOLO.com’s Lisa Guerin.
It All Boils Down to This
Follow these steps and do your homework, and avoid social media-based conflict in your workplace. Need help? Contact us anytime.