Facebook, LinkedIn, Twitter. These are just a few of the many social media websites that have sprung up in the last several years, and chances are, your employees are using one or more of these sites on a regular basis. According to a recent survey by the Pew Research Center, 66% of adult internet users make use of social networking sites, and the numbers are growing.
As the use of social media grows, you may have concerns about how your employees’ use of social media may be affecting your company. For example:
- An employee may be logging on to these sites frequently during the workday, depriving your company of productive working time.
- Employee chats on Facebook might include negative comments about your company, a supervisor or other employees.
- An employee could divulge sensitive information, such as the company’s financial performance, in a blog on his or her personal web page.
At least one state has taken steps to deal with some of the issues that arise in connection with social media in the workplace. Maryland recently enacted a law which, when effective October 1, will prohibit employers from requesting employees or applicants to disclose their user name or password through an electronic communication device. The new law will also prohibit employees from downloading unauthorized employer proprietary information or financial data to an employee’s personal website or a similar account.
Guidance from the NLRB
Just last month, the National Labor Relations Board (NLRB) released the third in a series of reports on social media cases brought to the agency. The NLRB, among other things, enforces employees’ rights under Section 7 of the National Labor Relations Act (NLRA), including the right to engage in “concerted activity,” which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.
The latest NLRB report focuses exclusively on policies governing the use of social media by employees. (Two previous reports on social media cases, which involved employee discharges based on Facebook posts, were issued in January 2012 and August 2011.) This report discusses seven workplace policies, six of which were found to be unlawful at least in part because they interfered with employees’ rights under the NLRA, including the right to discuss wages and working conditions with co-workers.
Lessons To Be Learned
If you haven’t already done so, now may be a good time to create a social media policy for your workplace. But where do you draw the line between allowing your employees an occasional “Tweet” during the workday and loss of productivity? How can you respect your employees’ right to post personal information on Facebook without risking negative publicity or exposure of confidential company data?
We’ve listed below some of key lessons to be learned from the NRLB’s report. (As with all workplace policies, an attorney knowledgeable in this area of the law and with your state’s laws should review your policy prior to its implementation.)
- Avoid overbroad language in your policy. The NLRB consistently found that workplace rules that are ambiguous and that contain no limiting language to clarify that the rules do not restrict Section 7 rights are unlawful. Even a statement such as “Don’t release confidential guest, team member or company information…” may be unlawful as it could reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, a right which is protected by the NLRA.
- Provide concrete examples of the type of conduct you wish to prohibit. Rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct are more likely to be lawful. For example, the NLRB found the statement, “Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination” to be lawful because it prohibits plainly egregious conduct, such as discrimination and threats of violence.
- Don’t require employees to get permission from the company before they post comments regarding the “terms and conditions of employment.” The NLRB has long held that any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the NLRA.
- Don’t rely on disclaimers. According to the NLRB, certain workplace rules such as “This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act” do not cure otherwise unlawful provisions of a social media policy because employees may not understand from the disclaimer that protected activities are in fact permitted.
The NLRB includes at the end of its report an employer policy which it found lawful in its entirety. This policy includes numerous examples of prohibited employee conduct, a restriction on using social media during the workday and a rule requiring employees to maintain the confidentiality of the employer’s private information.
For More Information
You can view all three of the NLRB’s reports on social media in the workplace by clicking on the links in the NLRB’s recent press release. Our Sample Employee Handbook includes additional guidance that may assist your company in crafting a social media policy. And don’t forget to download our free Personnel Recordkeeping Guide for an overview of key employee recordkeeping requirements under federal law.
Image Credit: Victor1558