Social Media Policy Headaches

Yesterday, I delivered a webinar on Social Medial Policies and the NLRB.  To be quite frank, this is a crazy area for employers right now. As most of you know, the NLRB has been getting a lot of press these days about its views on employer’s social media, as well as other, workplace policies.

In April 2011, the NLRB’s Acting General Counsel Lafe E. Solomon adopted the position that employees’ social media activities can trigger federal labor law rights even for non-union employees.  Solomon wanted to make sure he got employer’s attention and noted he was going to pay more attention to these types of cases and added social media to his hit list.  Then, in August 2011 and January 2012, Solomon released a report concerning the outcomes of investigations into social media cases as a way to give employers an idea of what clauses in various policies could be found to be unlawful.

So, again, just to be clear, we are not just talking about social media policies – all your policies can be implicated as impacting an employee’s Section 7 (the right to engage in concerted activity) rights and can subject you to an unfair labor practices claim.  For example:

•Confidentiality re personnel and legal issues
•Ethics, Standards of Conduct, Respect in the Workplace
•Computer and technology
•Blogging, social media
•Benefits and compensation
•Media relations and press interviews

Some employers are even wondering if they should have a social media policy. My view, absolutely. Or, you can offer guidelines and give some dos and don’ts (see below.)

But first, what are your goals with the policy/guidelines? Do you want to prohibit employees from sharing confidential info, not make disparaging comment or harass each other through SM? This is the starting place.

The most important tip for writing a policy that may pass the NLRB smell test…at least for today is to define key terms in the policy.  In the majority of cases, the NLRB found the employer’s policies were just too broad and unclear.  Here are some examples of terms you will need to define:
•Appropriate and inappropriate conversations
•Harassment, discrimination protected characteristics
•Disrespectful conduct
•Trade secrets

Seems a little basic, but, for example, tell employees what you think an inappropriate conversation is to you – sharing personal information about clients, a co-workers medical condition, obscene language.

Here’s a clause the NLRB found acceptable:
Employees are prohibited from using social media to post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s workplace policies against discrimination, harassment, or hostility because of any protected class, status, or characteristic.

Some do’s and don’t for your guidelines:

•Think before you hit enter – be respectful of the employer, clients, co-workers.
–Be sensitive how comments may impact others
•Be courteous and polite
•Use common sense and good judgment
•Work comes first, facebooking, tweeting, etc., should not impact productivity
•Be mindful of privacy issues
•Be accountable and correct mistakes.
•Encourage, but not require, employees to bring complaints to HR

And always, always, remind employees they have the right to chat about wages and the terms and conditions of their employment. If you would like a copy of my presentation. Shoot me an email.

Good luck!

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