Managing Employee use of Social Media

As social media use among people of all ages continues to rise, it should come as no surprise that such use is creating significant challenges within the workplace. Gone are the days when employees needed access to company-provided desktop computers and time to download their favorite Internet sites.

Today, access to social media sites such as Facebook, Twitter, and Instagram are literally in the palm of one’s hand and are available 24/7. Such access at any time of day, as well as the freedom to post disparaging comments about coworkers, customers, supervisors, and competitors, presents challenges for employers when determining what behavior should be disciplined.

Should a waitress be discharged for complaining on Facebook about bad tips from customers? What if such comments negatively impact a business?

What about employee complaints on Twitter regarding a company supervisor or the company’s products/services? Should an employee be disciplined for making such public comments?

Remember, social media is much different from other communication mediums. The recipients of employee complaints about coworkers, supervisors, and customers are no longer limited to those who stand around the water cooler.

Despite an employee’s belief that his/her comments are “private,” information that is placed into a social media account, and limited to only a few dozen Facebook friends, can be disseminated in real time and can easily “go viral.”

Moreover, such comments, photographs, and tweets are likely permanent and can cause serious damage to personal and business reputations.

Given the destructive power of social media, should employers adopt policies to govern the use of this method of communication by employees? Are employers limited by the law regarding the scope and application of such policies? These are only a few of the many questions employers face in our new media age.

Social Media Policies

Many employers have responded to the challenges of social media by developing policies to govern employee use of this medium, both during and after work hours.

Developing such policies makes good sense. A well-prepared and carefully implemented policy provides guidance to employees regarding how to use social media in a responsible manner.

Such policy may also offer some legal protection to an employer against claims that an employee engaged in defamation, discrimination, or harassment of others through his/her comment, photograph, or tweet.

The risk of liability for employers often exists regardless of whether the employee commits the social media offense from his/her personal computer/handheld device, while at work or through the company-provided Internet server, or from some employer-provided equipment.

A well-drafted social media policy should include a statement of the employer’s objectives and values, guidelines and best practices, and clearly defined rules.

Employers should avoid subjective terms and standards that force employees to decide what is or is not permissible social media conduct.

In addition, the policy should state that the employer may monitor employee social media use in the same manner as company-provided Internet and email, and that an employee does not have a reasonable expectation of privacy where the employer has announced that computer use is subject to electronic monitoring.

Finally, any social media policy should set forth the actions that will be taken if such objectives and values are compromised and/or a rule is broken.

Although developing a social media policy makes good sense, employers should pay heed to recent decisions of the National Labor Relations Board (NLRB), which place significant restrictions on what may be included in such a policy.

Specifically, the NLRB found violations of Section 7 of the National Labor Relations Act (NLRA) in policies that, in the opinion of employers, reasonably restricted an employee’s use of social media.

Section 7 of the Act states: “Employees shall have the right to self-organization . . . and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection.” (29 U.S.C. § 157)

Section 7 of the NLRA is not limited to activity among employees seeking union representation or union-organized workplaces engaged in collective bargaining.

To the contrary, Section 7 of the NLRA affords every single employee the right to engage in concerted activity for mutual aid, which includes discussing wages and other terms and conditions of employment, with other employees and non-employees (e.g., reporters, Internet media sources, unions, or the NLRB).

The medium by which employees communicate, e.g., in person or on social media, does not dictate the level of protection provided to them under Section 7. Therefore, the NLRB has taken a keen interest in any restrictions imposed by employers on employee use of social media.

The NLRB has announced that a social media policy will be found unlawful if it explicitly restricts Section 7 activities.

Protected activities could include general complaints about supervisory activities, statements about staffing levels or wages/benefits, criticism about a supervisor’s attitude or performance, the negative use of an employer’s name or logo, and/or the use of social media to express such opinions during non-work time and from home-based computers/handheld devices.

If a policy does not specifically restrict Section 7 activities, the NLRB will analyze whether: employees would reasonably construe the language to prohibit Section 7 activity; the rules within the policy were promulgated in response to union activity; and/or the rules within the policy have been applied to restrict Section 7 rights.

For example, the NLRB has found that employer policies that prohibit the unauthorized dispersal of sensitive company-operating materials or the disclosure of confidential information contained in personnel files are in violation of Section 7 because employees could reasonably understand these prohibitions to bar them from discussing wages or other terms of employment.

Likewise, the NLRB has struck down policies that broadly restrict employee postings about clients, customers, or coworkers, without company approval, or that prohibit posting comments that negatively affect the employer’s reputation in the marketplace.

In fact, the NLRB has even found that social media policies that broadly prohibit profane or abusive language are not lawful because they could reasonably be interpreted as barring employee rights under Section 7.

An informal poll of businesses in the region would likely find that every employer has been subject to some criticism on social media by a disgruntled employee.

As such, employers should closely follow legal developments regarding social media and submit any policies related to social media, Internet, mobile phones, handheld devices, confidentiality, trade secret, anti-harassment, and anti-discrimination to counsel for review on a frequent basis, perhaps semi-annually. BW

Jill M. Lashay, esquire, a shareholder with Buchanan Ingersoll & Rooney PC, represents management in areas of labor and employment law, providing counsel to both union and non-union public- and private-sector employers. She has been honored by her peers and selected to the Pennsylvania Super Lawyers® list each year from 2009 to 2014. jill.lashay@bipc.com