BY ROBERTA PIKE
LEGAL EASE – During the past decade, we have seen the explosive growth of social media. What was once primarily the domain of teenagers has evolved into a worldwide phenomenon: Millions of people are using social networks to not only communicate with their friends but also reach a far wider audience. In particular, businesses have increasingly adopted the use of social media to promote their products and services, and their employees have likewise embraced social media for their own personal and professional purposes. And that is where problems can arise for employers who fail to implement effective policies. People oftentimes don’t think before they post, and in a matter of seconds an employee accessing social media without guidelines as to what is—and what is not—permissible can cause grievous and costly damage to your business.
So why not just ban it all and adopt a policy prohibiting employees from using social media? Not so fast. Attempts to ban all social media use can easily run afoul of the National Labor Relations Act (NLRA). The NLRA gives all employees the right to engage in “protected concerted activity for the purpose of collective bargaining or other mutual aid and protection,” and a blanket prohibition against social media could be construed as an attempt to silence discourse among employees about conditions of employment.
For example, in a case against Dish Network Corporation, an employee challenged his employer’s policy that purported to restrict social media activities, providing that “unless you are specifically authorized to do so, you may not ... participate in these activities with Dish Network resources and/or on company time.” The National Labor Relations Board (NLRB) determined that this policy was unlawfully overbroad by infringing on the right of employees to engage in protected concerted activity.
Likewise, in a case against Karl Knauz Motors, NLRB found that while a car dealership did not violate the NLRA when it terminated a salesman for posting comments on Facebook about an accident involving a customer whose child drove a car into a pond (since the posting did not involve a discussion of employment matters), the dealership’s “courtesy policy” was at odds with the NLRA. That policy provided that “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or other language which injures the image or reputation of the dealership.” The board deemed the policy unlawful due to the fact that: (a) it didn’t inform employees that critical statements about working conditions are protected by law; and (b) employees could construe the making of lawful critical statements about their employer as disrespectful and/or injurious to the “image or reputation of the dealership.”
These cases are hardly unique, and given the exceptionally broad manner in which the NLRA is interpreted, they underscore why blanket bans on social media are not advised. This is not to say you have to permit employees to spend their days tweeting and blogging to their hearts’ content. You may restrict social media access to break and lunch periods, and/or require that employees use their own equipment (tablet, smartphone, etc.) for such purposes. Care must be taken, however, to ensure that the restrictions do not infringe upon the free speech rights guaranteed by the NLRA.
Attempts to ban all social media use can easily run afoul of the National Labor Relations Act."
The best way to regulate employees’ social media activities without violating the NLRA is to adopt a sound social media policy. You need to make sure employees understand that they are permitted by law to discuss working conditions and terms of employment in social media (and the NLRB has ruled that such discussions may include use of the company name and logo). But you also need to convey to employees that their personal and non-work-related activities should be conducted on their own time. And the policy must make it clear that there are limits to such communications, particularly when they make mention of or otherwise involve the company. For example, you don’t want employees disparaging the company, its customers, or competitors on social media. And it must be clearly stated in the policy that employees who make postings that are not about working conditions—and that result in negative publicity for the company—can be cause for termination. There was a news story this past Halloween about a woman who posted a photo on Facebook where she was smiling with two friends, one wearing blackface and a hoodie splattered with fake blood, the other wearing a shirt printed with the words “Neighborhood Watch.” She captioned the photo “Happy Halloween from Zimmerman and Trayvon,” followed by a smiley emoticon. Within a matter of minutes, the Internet was abuzz over the photo, along with full details about the woman (who also posted photos of her dressed in her work uniform, her vehicle, and her vehicle’s license plate). Her employer was soon fielding numerous requests for comments about the tasteless Halloween photo and other discriminatory postings the employee had made. Not surprisingly, she was soon terminated.
So what should a social media policy contain? Here are some key components:
• Set legally permissible limits. Make it clear to employees that they may not post any information that is confidential or proprietary (e.g., customer names or contact information, customer pricing formulas, etc.), nor may they engage in any conduct that is prohibited by law (e.g., defaming competitors, discriminatory or harassing comments or jokes, violating others’ intellectual property rights, etc.).
• Encourage civility. Discourage postings that are inflammatory, derogatory, and/or discriminatory. Postings can go viral in a matter of minutes, so employees should keep their comments civil.
• Spell out the consequences of irresponsible or prohibited posts. Encourage employees to think before they post. They should be made aware that they can be held responsible for anything they publish to the web, including postings made on their own time (like the previously mentioned Halloween photo), and how behavior that may cast the company in a negative light can result in disciplinary action or even termination.
• Encourage employees to discuss workplace concerns with the company. Avoid NLRB problems by providing an alternative outlet for addressing frustrations so employees don’t take their complaints to social media. Encourage them to speak to a supervisor about such matters first before posting; however, make it clear to employees that their right to air grievances is guaranteed by law. • Designate a contact person for questions on social media. Employees should be encouraged to bring social media questions to the company before they venture online. Designating a contact person to answer any questions as to what is permitted will reduce the likelihood of problems, and also provide another avenue for the company to identify potential workplace grievances to resolve offline. • Inform and educate your employees. No matter how much effort your company might expend in formulating and adopting a social media policy, it will all be for naught if the policy is not properly conveyed to employees. Make sure your policy is written in clear and easily understood language, is distributed to every employee, encourages any questions that might arise, identifies the contact person(s) to answer such questions, spells out the consequences of non-compliance, and is acknowledged in writing by each employee to whom it is distributed.
There is no fail-safe way to safeguard against stupidity in cyberspace. However, adopting an effective social media policy will encourage employees to think before they commit their comments to the electronic stone of the Internet. A well-written policy will go a long way toward minimizing the chance that employees will post things that might come back to haunt their employer. It will also make it easier for an employer to justify an employee’s termination due to an ill-advised posting on the part of the employee. [CD0215]
Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.
Roberta Pike is a partner with Pike & Pike Law Firm in Bellmore, N.Y. She may be reached at firstname.lastname@example.org.