Employer Social Media Policies
As of July 2015, there were over 1.49 billion monthly active users of Facebook. LinkedIn has surpassed 354 million members this year. Approximately 6,000 tweets are posted on Twitter each second, amounting to 500 million tweets each day among its 304 million active monthly users. Now more than ever, employers are faced with addressing the effects of employee use of social media. There are concerns with respect to lost work time and productivity as well as how employees portray their employer on the internet and what information is provided to the public through this format. What options does a business have to monitor and protect itself from harmful internet conduct?
The first step is to address whether to restrict the use of social media websites entirely during work with work equipment. Beyond an outright ban, employers can and should consider policies that respect their employees’ privacy and freedom of speech rights, while at the same time protecting legitimate business interests including public image, trade secrets, and civility amongst co-workers. Implementing an effective social media policy can help with these goals. Social media policies should be coordinated with existing policies on e-mail, Internet and electronic media usage, and codes of business conduct. This article addresses current legal considerations for addressing the use of social media by employees.
Use of Social Media at Work
If productivity is a concern, employers can create policies that restrict personal use of social media during work time and with work equipment. In this situation, the employer will have to determine how much use of social media is acceptable during work time, if any. Specific website restrictions blocked on employer networks is an option to facilitate in implementing a policy that prohibits the use of social media at work. However, if social media is used by certain employees as part of a marketing plan for the business, then the policy should provide notice to employees of the exception.
Outside of work, employees have a right to privacy on the internet. California explicitly forbids private and public employers from demanding usernames and passwords to access social media accounts. What can an employer do about employee posts that address aspects of his job that are made public and visible to everyone? Is there recourse for an employee that uses his social media site to harass or discriminate against coworkers?
Regulating Employer Social Media Policies
Probably one of the most significant impacts of social media on the workplace is that it makes it easy for any employee to make public comments about his job. Unsurprisingly, we are seeing increased regulations on employers attempting to address employee content on the web.
The National Labor Relations Board (“NLRB”) has intensified its regulation of employer social media policies to ensure that employees have the right to use the internet in furtherance of concerted collective activity. The focus is whether the employer’s policy unlawfully prohibits employees from discussing the terms and conditions of their employment on social media in violation of the National Labor Relations Act (“NLRA”) by impeding employees’ rights to participate in collective activity. The NLRA protects the rights of employees to act together to address conditions at work and the statute is often applied to protect certain work-related conversations that take place on social media. Protected activity on social media could include communicating about work-related issues such as workload, staffing, employment conditions, and wages.
In a recent NLRB case, an employee was having a dispute with a coworker about job performance and staffing levels. The employee asked coworkers for their input on these issues on Facebook and several responded in online comments. All participants were fired because of the online conversation. The NLRB found that they were engaged in protected concerted activity, even though some of the comments were sarcastic or included profanity, because they were discussing working conditions in advance of a management meeting.
Employer policies should not be so broad that they prohibit the kinds of activities protected by labor laws. Despite these explicit protections, this does not mean an employee can post whatever he or she wants online about his or her job. Whether or not concerted activity is protected depends on the facts of the case. For the protection to apply, two or more employees must be acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he involves co-workers before acting or acts on behalf of others.
Businesses are permitted to create policies that prevent employees from posting or releasing proprietary, confidential or privileged information, or private information about co-workers. If an employee was upset with his boss and decided to leak confidential information in a vindictive manner, it is likely not protected by the NLRA. Similarly, the NLRA does not protect an employee that uses social media to harass and discriminate against others.
Thoughtful social media policies should promote employee internet postings to be consistent with applicable discrimination and harassment policies. Businesses may protect against inappropriate postings that may include racial epithets, discriminatory remarks, sexual or racial harassment with a nexus to the workplace, as well as threats of violence against co-workers. In these circumstances, depending on the facts, certain postings may warrant subjecting an employee to disciplinary action, up to and including termination.
Navigating the tightrope of unlawful and acceptable social media policies can be daunting. A regular review of individual policies is necessary to ensure compliance with recent legal developments. Employers should ensure that their policies respect both the employees’ use of social media and the employer’s legitimate business concerns.