The Increasingly Dangerous Mine Field

Navigating social media policies and related employee discipline
May 1, 2012

The issue of employee versus employer rights with respect to the use of social media has become a hot topic. Employers need to protect their public image and ability to engage in commerce without harm, yet are increasingly frustrated as to what policies and personnel actions are permissible when employees post statements in social media that could be potentially harmful. 

In order to clarify the issue, the Office of the General Counsel of the NLRB published a 35-page report in January providing additional guidance regarding social media policies and permissible disciplinary actions. Here is a simplified version of those 35 pages.

Social Media Policy 

• Social media policies need to be carefully crafted so they do not prohibit the exercise of employee rights under Section 7. 

• A general disclaimer indicating that nothing in the employer policy should be interpreted to prohibit rights under the NLRA is insufficient to make an overly broad policy legal. 

• General policy statements prohibiting employees from making disparaging comments about the company, its officers and managers and personnel practices are illegal. Policies that require that the postings must be “professional” or “appropriate” are unlawful because of their “chilling” effect. 

• Social media policies promulgated in response to union activity or previously applied to restrict Section 7 activity are generally illegal. 

• Policies prohibiting employees from identifying themselves as company employees and from using the company name, trademark or logo are generally illegal. 

• Policies broadly prohibiting employees from using company computers, cell phones and other employer-owned or -provided communication devices to post on social media are likely illegal as employees have to right to talk to other employees regarding their employment in non-work areas during non-work time. Per my previous article on this subject, posting on social media sites is the 21st century version of talking at the water fountain (which is also company property). 

• Policies requiring prior approval of management are “chilling.” 

• Policies which prohibit postings that are slanderous, vulgar, obscene, intimidating or detrimental to the company’s operation are generally legal as are prohibitions against postings that violate company policy in compliance with employee rights legislation (for example, policies prohibiting discrimination based on protected characteristics such as race, sex, age, disability or religion). Also, prohibitions against postings that would violate Federal Trade Commission (FTC) or Securities and Exchange Commission (SEC) regulations are legal. Prohibitions against postings involving trade secrets, product release dates, employee or client health information or other types of proprietary or confidential business information are also generally legal. 

Discipline

• The definition of “concerted activity” is relatively broad. Actions are concerted when an individual person attempts to initiate, induce or prepare for group action that is not solely for the benefit of the employee himself. Social media postings, however, do not have to include a plan for collective action to be protected. Initial discussions may, at their inception, involve only a “speaker and listener” to be protected when the discussion involves terms and conditions of employment. In other words, if one employee reads the posting, it is likely protected, considered to be concerted and discipline is prohibited as the NLRB considers this type of activity to be “an indispensable preliminary step to employee self-organization.” 

• Discipline to prevent future employee discussions regarding terms and conditions of employment is illegal. 

• Comments about company managers posted on social media regarding the effect of the managers’ actions on the workplace are likely protected activity and discipline associated with those postings is illegal. Discipline, however, may be legal if the postings cross the line into verbal or physical threats, defamation or are so disparaging to potentially cause harm to the company’s reputation or business. The NLRB accepts rather salty language as being part of the employer/employee discourse regarding terms and conditions of employment so caution is advised here. 

• The same can be said about postings regarding the company itself. Postings concerning terms and conditions of employment, ongoing labor disputes, the employer’s management style, etc. are likely protected and discipline associated with those actions is illegal. Discipline imposed on an employee for postings that are patently false, misleading, inflammatory and injurious to the firm’s reputation or designed to reduce its income may be legal, but, as above, the NLRB’s interpretation of the postings is likely to lean toward protected activity except in extreme cases of malice with “reckless disregard for their truth.” 

• Postings that are merely employee venting about the company or its management and that do not attempt to enlist other employees into some type of action are not protected and discipline may be appropriate and legal. 

Employers, however, should keep in mind that the NLRB, will continue to rule on issues in this area and guidance is still evolving. 

article by Dr. Larry Phillips, SPHR is a management consultant, educator, and author of SPHR: Senior Professional in Human Resources (2nd ed.). He is affiliated with Ergo Resource Management, Inc. in Syracuse, IN. He can be contacted via email at lwphilli44@gmail.com

 



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