“You know what, Stewie? If you don’t like it, go on the internet and complain.”
Brian Griffin, Family Guy.
For the best interest of both employers and employees, Brian Griffin’s advice should probably be reconsidered. But, as we all know, that seems to be an impossibility in this day and age.
Because social networking sites are a relatively young phenomenon, employment law on this topic is still in its adolescence.
Many lines remain blurry. While employees have certain rights to discuss pay, working conditions and engage in “other concerted activities” pursuant to Section 7 of the National Labor Relations Act, employers still have the right to protect their business interests and enforce legitimate employment policies. The National Labor Relations Board’s advice on Social Media communications and appropriate Social Media Policies can help to provide a better understanding of how this field of law has developed since 2010.
Protected concerted activity
If you’re an employer, before you say, “we don’t have any unionized employees, so the NLRA doesn’t apply to us,” click on the link and educate yourself. Those protections apply to ALL employees, unionized or at will. “Protected concerted activity” protections apply to everyone, and the NLRB has even created a stand-alone website to help employers and employees, alike, better understand the federal protections..
For many large and/or publicly traded companies, the impact of having internal employment issues or wage discussions publicized can be concerning. But an employer’s desire for privacy without adequate knowledge of federal employment protections can result in far greater damage for the company.
So, what to do?
Social media policy
First and foremost, establish a clear and specific social media policy that is not so sweeping as to prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An appropriate social media policy can protect the employer’s interests by clearly and concisely informing all employees of exactly what is expected of them in this digital era. It can delineate unacceptable on-duty activity involving social media, cell phone use, photography at work and other online-related activities, and can also detail off–duty activities that identify a clear connection to the employer and may be worthy of discipline.
An employee’s comments on social media are generally not protected if they are simply gripes not made in relation to group activity among employees. Employers have leeway to discipline employees for inappropriate use of social media as it relates to their business. But many employers and employees face off in litigation because they simply are not educated about what types of communication are federally protected. An adequate social media policy can both insulate the employer from exposure and specifically inform the employee of what is acceptable, all without inviting the wrath of the NLRB into your business.
While a social media policy should be customized to your business model, here is an excerpt from a policy used by a large, publicly traded company, that I find particularly effective:
If an employee elects to post a comment related to [the Company] in any public forum (including a personal blog), he/she must include a disclaimer, advising that the opinion is his/her own, and not that of [the Company’s] Officers, Directors, or Employees. And, when choosing to participate in an online community or other form of public media – for example (but not limited to) Twitter, Facebook, YouTube, Instagram, Snapchat etc. – employees who identify themselves as [Company] (or who are identifiable as being employed by [Company]) should do so with the understanding that they are – and will be held – accountable for their comments/videos/posts. In the event that an employee’s comment/videos/posts violate [Company] policies or are inconsistent with leadership expectations, the employee will be subject to discipline, up to and including termination. Employees must also be aware that every customer is a potential reporter/photographer, and their actions can be recorded, written about, or videotaped and quickly distributed all over the internet.
An employee bad-mouthing your company or your customers may be cause for discipline. Today, with the extensive use of social media outlets, more people can “hear” negative comments and see your employee’s name attached. Therefore, even if the employee did not intend for his or her comments to go past a closed circle of friends, they may have reached thousands of people with one click of a mouse. Social media makes it very easy to “share” or pass on comments from one person to another. As such, any post, no matter how well-intentioned, can expose the individual employee and his or her company.
Obviously, the specific circumstances of each incident will determine the legality of any potential discipline. Some social media in the workplace cases have focused on the balance between an employee’s right to privacy, particularly when off-duty, and an employer’s right to control and manage employee conduct that could have a negative impact on an employer’s legitimate business interests.
However, generally speaking, an invasion of privacy claim is unlikely since there is no reasonable expectation of privacy when someone posts in the public domain and the posted information is voluntarily disclosed. An invasion of privacy claim requires that the claimant have a reasonable expectation of privacy. The possibility of a privacy claim may increase if an individual’s page contains heightened privacy settings or the company gains information through use of a false identity. Still, one’s lack of privacy on social media sites should not be underestimated.
Privacy and free speech arguments are certainly stronger for employees who are not covered by a specific company policy regarding the use of social media. That is why, as this topic gains more attention, even the smallest companies are advised to establish a policy specifically focused on discussion of work issues on social media sites. With such a policy in place, a company’s ability to take action against bad-mouthing bloggers is strengthened.
While this is only a brief overview of the challenges employers face, I leave you with these thoughts:
- Let your employees know that they need to think before they speak…and type. What anyone says on a social media site is far-reaching, even when someone intends the post or message to be “private.” Conversely, when the goal of the post is to publicize, too many employees believe they have unlimited freedom of speech rights, far broader than exist even in the public/government sector. Per the NLRB, an employer cannot control all communication, no matter how frustrating that may be. But you have a right to protect your business. Start by incorporating a clear, concise, and specific social media policy into your Employee Handbook. If you have a policy, but haven’t reviewed it in a while, take another look in light of the NLRB memos and guidance.
- Be vigilant about your own use of electronic and social media. Be conscious of how you use social media to advocate for your business, and realize you are setting an example for how your employees use social media. Help set a better example by specifically spelling out what is unacceptable in a properly crafted social media policy.
- Get out in front of the tidal wave that is social media. Communicate with your employees and avoid becoming tomorrow’s headlines. We live in a 24-hour news cycle, where people are checking all news outlets non-stop, (including social media sites – yes, many people get their news from Facebook and Twitter). Get in front of this impact on your business, rather than dealing with the aftermath.
- Most importantly, enjoy the Family Guy, but don’t take advice from Brian Griffin.
This update is for informational purposes only and should not be considered legal advice. Each situation is different, could change any time, and should be analyzed by an attorney.