Wednesday, September 4, 2013

Social Media and the Workplace

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Social media use in the workplace offers substantial benefits, but employers also face legal and operational risks.  Employers of every size struggle to establish and enforce social media policies as legal standards, technology, and cultural norms change. Social media outlets including Facebook, Twitter, YouTube, LinkedIn, and various blogs have transformed the means by which employers and their employees communicate with each other, with customers and the public at large.  Employers need to understand the risks and benefits inherent in social media including the risk of hiring, disciplining or firing employees based on social media usage.

Social networking sites have become the modern-day office water cooler. They provide employees with a new way to interact and express opinions about co-workers, managers, work assignments and jobs.  This use of social media has prompted many employers to try to control or limit social media use by employees on and off the job.  Employers have also attempted to reduce and eliminate social media expression by employees that might be harmful to the employer’s image or reputation.

These attempts to control employee use of social media have attracted the attention of the NLRB.  From the NLRB’s perspective, broad social media policies put in place by employers can lead to violation of employee unionization rights.  The NLRB believes that social media policies that prohibit employees from making negative comments about their employer can restrict an employee’s right to discuss labor conditions.  Accordingly, employers need to be careful in drafting social media policies.  While it is appropriate to adopt a social media policy, such a policy cannot be so broad as to take away the employees’ right to work together to improve working conditions.

Last year, the NLRB issued a report that provided some guidance on this issue and cautioned that numerous common provisions in social media policies could violate the National Labor Relations Act (NLRA).

Confidentiality Provisions.  Employers generally assume that it’s acceptable to prohibit employees from disclosing confidential information on social media websites.  Not so according to the NLRB.  When reviewing a retailer’s social media policy, the NLRB found that prohibiting employees from using social media to disclose confidential guest, team member and company information could be a violation of the NLRA.  The NLRB, stated that such a prohibition would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves.  The NLRB also found that provisions which threatened employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information would be a violation of NLRA.

“Be Nice” Requirements.  The NLRB also did not like language in social media policies that recommended employees be nice and adopt a friendly tone when engaging with others online.  The NLRB found that this provision was unlawful for multiple reasons.  The NLRB found that warning employees to avoid topics that might be considered objectionable or inflammatory, and reminding employees to communicate in a  friendly professional tone, created an environment where employees could not engage in online discussions that might become heated or controversial.  The NLRB said that discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics or religion, and without further clarification of what is objectionable or inflammatory, employees could reasonably construe such a rule as prohibiting robust but protected discussions about working conditions or unionism.

Permitted Language.  So, what can a social media policy contain?  An employer may prohibit users from posting anything on the Internet in the name of the employer or in a manner that can reasonably be attributed to the employer without prior written authorization from employer’s designated agent.  It is also permissible to prohibit employees from representing any opinion or statement as the position of the employer or of any individual in their capacity as an employee of the employer.  Employers can also require employees to: be respectful of others, be honest and accurate in any posting, post only appropriate and respectful material, not use social media to retaliate, maintain the confidentiality of employer trade secrets and private or confidential information, refrain from posting internal reports, policies, procedures or other internal business-related confidential communications, require employees to respect financial disclosure laws when online and not create links from their blogs or social networking sites to the employer’s website without identifying themselves as an associate of the employer, express only their personal opinions and never represent themselves as a spokesperson for the employer, and prohibit employees from speaking to the media on the employer’s behalf without contacting the corporate affairs department.

A well-drafted Employee Manual can be a valuable tool for you and your employees.   Your Employee Manual should contain a social media policy.  But you need to be careful you don’t include language in the social media policy that can lead to litigation or cause workplace unrest.  Please call one of our Employment Law attorneys to discuss your social media policy or any aspect of your Employee Manual at 937-223-1130 or

AND ONE MORE THING.  Matt Stokely recently posted an article on “Bring Your Own Device” to work rules.  In this article Matt discussed how the proliferation of smartphones and tablets provided the potential of increased productivity, responsiveness, and mobility in the workplace, but also raised a host of issues, including security and legal risks such as data loss, data breach, and noncompliance.  Matt pointed out that due to these risks, a proactive BYOD policy is imperative and if done correctly, could effectively increase security and compliance.   Please contact Matt Stokely at 937-223-1130 or to discuss your BYOD policies.

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