Employees’ use of social media can create a lot of headaches for employers, or worse. It doesn’t have to be that way. While you can’t block every social media post that can potentially give your company a black eye, there is much you can do towards achieving this goal. Start by establishing and enforcing a policy that adheres to government guidelines.
You have probably heard some of the horror stories. For example, there was the case of an employee who used certain unflattering words to describe her supervisor, including “scumbag,” in a post visible to co-workers. When she was terminated and took her case to the National Labor Relations Board, the company settled and narrowed the scope of its social media policy. (NLRB v. American Medical Response)
“Expecting employees to behave with common sense and telling them are two totally different things.” — from the book A Necessary Evil: Managing Employee Activity (on social media sites)
The NLRB maintained any social media policy that interferes with an employee’s right to free speech among co-workers about wages and working conditions, known as “concerted activities” under the National Labor Relations Act, is unacceptable. The fact it occurred via social media instead of in actual conversation made no difference. Also, this protection exists whether or not employees are represented by labor unions.
The NLRB has issued three reports describing its rulings in a variety of social media cases. Taken together, you can get a good feel for where the NLRB draws the line. The following is just a sample. Links to the three reports can be found here.
Newspaper. In this case, the NLRB accepted the decision of a newspaper to terminate a reporter who posted a series of Twitter tweets on subjects beyond the realm of his expertise as a reporter, as well as Tweets critical of other companies. The employee was warned to stick to appropriate topics, but didn’t and eventually was fired. The NLRB sided with the employer because the employee wasn’t involved in concerted activity with colleagues relative to their working conditions or wages.
Fast food establishment. Here, the decision of the NLRB went against the employer. In this case, a fast food restaurant fired two employees for grousing about the company’s failure to withhold adequate state income tax. The employees ended up having significant tax bills to pay when filing their tax returns. A former employee also joined the Facebook dialog, as well as some restaurant customers. The NLRB concluded the discussion represented concerted activity. The Board’s test for concerted activity “is whether activity is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself,” according to the NLRB’s General Counsel.
Hospital. A nurse won her case after her hospital employer reprimanded for violating a social media policy. The NLRB deemed the policy too broad. The nurse discussed a fellow employee’s poor work habits with other nurses on Facebook. The hospital’s social media policy included a rule prohibiting employees “from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.” Another rule of the employer prohibited “any communication or post which constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member.” The NLRB ruled that the hospital’s policy needed to be more specific.
To avoid getting entangled with the NLRB, or losing if you do, it’s essential to develop a social media strategy. Aliah D. Wright, a social media expert employed by the Society for Human Resource Management, wrote a book published by SHRM that covers this topic (and others). In A Necessary Evil: Managing Employee Activity (on social media sites), Wright states that only 31 percent of employees work for companies having a social media policy in place.
“Expecting employees to behave with common sense and telling them are two totally different things,” she warns. Wright advises employers to begin developing a policy by defining an overall social media strategy, including how you can use it to your advantage, as well as guidelines for employees. It should reflect your company’s culture.
Here are some tips from Wright to help you develop and implement a social media policy for employees:
Be specific, and give clear examples of unacceptable behavior — and the consequences employees can expect if they violate the policy. If you restrict disclosure of “confidential” information, define what this means. But don’t try to block them from engaging in concerted activities, as noted above.
Social media policy documents should be supplemented by training sessions to emphasize key elements of the policy and respond to any employee questions about the policy.
Do not ask employees for their passwords to access their social media accounts. Several states, including California, Illinois, Michigan, Maryland, Delaware and New Jersey, already ban the practice. Also, legislation has been introduced in Congress to ban the practice on a national basis, although Congress has failed to enact it thus far. Needless to say, the practice is also offensive to most workers, and could undermine good employee relations.
If employees are encouraged to use social media accounts as part of the company’s effort to build a presence and positive image in this sphere, employees should at the outset sign an agreement stating the account belongs to the employer and will not follow the employee when he or she leaves the company.