Wednesday, April 18, 2012


Social Media - TMI

It's in the news - employers may incur serious liability if they try to restrict employees' comments on social media. What the reporters (and the National Labor Relations Board) seem to be largely ignoring is that employers may have serious problems if they don't set and enforce legitimate policies.
Consider what might happen if an employee discloses on Facebook the details of a confidential business transaction, tweets about a hospital's treatment of a patient, or posts defamatory (as opposed to merely insulting) comments about a supervisor on LinkedIn. It won't be just the employee who is on the hook for HIPAA violations, or defamation. And aside from legal liability, a business can't sit idly by and let employees publicly trash its reputation.

So what is the solution? The bad news is that there isn't a perfect solution. Reading through the summaries of NLRB decisions, only one thing is clear: even policies that seem to comport with common sense and the letter of the law may later be found too broad or otherwise out of compliance. This article provides some suggestions for creating or revamping a social media policy, but there are no guarantees.

The Basics

Federal law gives employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

The protection for "concerted activity" means employees may discuss (and complain about) working conditions for the purpose of working together to improve those working conditions – including via social media.

Keep in mind these laws are not limited to union shops. The vast majority of private employers are subject to these laws.

In short, your policies must not restrict "concerted activity," and must be written so that employees would not "reasonably construe" the policies as restricting concerted activity.

Concerted Activity

One (of many) difficulties is that the presence of concerted activity is judged after the fact. An employee who posts a "personal gripe" on Facebook is not engaged in protected concerted activity. But if a couple of co-workers comment on her post, the NLRA may be implicated. If the complaint is about working conditions, and a co-worker suggests something that sounds like legal action, suddenly you've got protected activity.

          Working Conditions

Complaints about working conditions may include complaints about failure to pay overtime and other legal violations, but may also include the kind of vague grumbling that is common everywhere.
  • "I don't get paid enough to put up with this *(%^&; - I haven't had a raise in three years"
  • "We're out of supplies - again"
  • "Can you believe she got the promotion? I've been here twice as long and I was born more qualified!"
  • "John was disciplined for being a smartass - I'm sure he's not a happy camper"
  • "They always want to know who's taking breaks and how long, but they don't know how to tell people when they're doing a good job"
  • "Only bad behavior gets rewarded - honesty and integrity are a foreign language"
  • "They'd rather pay people minimum wage and get rid of the smarter people who earn more"
The NLRB summary notes that complaints about "mismanagement" and "the quality of supervision," "unfair" selection processes for promotions, scheduling, discipline, and low wages (even if there is nothing illegal about the wage rate) are all potentially protected complaints about working conditions.

          Working Together to Improve Working Conditions

There is no question that "Let's form a union and negotiate a raise" is protected concerted activity. But of course it's not that simple. The following are examples of comments that the NLRB found implied the employees were considering or preparing to discuss taking action...
  • "It would be pretty funny if all the good employees actually quit"
  • "This isn't over by a long shot" (Really!)
A tiny concession: clicking "Like" is not concerted activity; a co-worker must also respond (presumably agreeing that the working conditions should be improved), and someone must suggest taking action.

 What's An Employer To Do?

Subject to the lawyerly caveats above ("there are no guarantees"), the following prohibitions appear to be safe to include in your policies, if they are limited to prohibitions on what an employee can say with reference to the company:

  • Disclosing confidential information (such as non-public financial statements, trade secrets, customer lists, employee personal contact information, medical information, securities information, attorney-client privileged information, etc.).
    • But keep in mind you may not prohibit employees from sharing salary/wage information, disciplinary policies or decisions, promotional decisions, etc.
  • Obscene, threatening, intimidating, harassing, or profane postings
  • Postings which violate company anti-harassment policies (such as racist or sexist comments)
  • Disparaging company products or services
    • A general prohibition on disparaging the company, supervisors, or co-workers is too broad, however.
  • Disclosing new product lines or other marketing information, without authorization
A Few Other Pointers:
  • Your computer use and confidentiality policies should match your social media policy
  • Your solicitation policy must allow employees to "solicit" (i.e. pass out leaflets, invite people to meetings, post notices on your employee bulletin board, and discuss working conditions) when off duty and in non-working areas - that means during paid rest breaks and unpaid meal periods, in the employee lounge, and in the company parking lot. You may restrict this activity to areas where customers are not likely to be, and you may prohibit employees from soliciting co-workers while the co-workers are still on duty.
  • You may restrict employee's use of company computers, but the restriction should be across the board (not limited to complaints about work, social media, etc.): "No personal use of company computers" or "No accessing social media or personal email accounts on company computers" or "No personal use of company computers other than on break/lunch"
  • (This part is really hard to swallow!) You must include examples of permissible and prohibited comments, to ensure employees can't (mis)construe the policy to restrict concerted activity.
  • Generalized prohibitions (such as "Postings must be appropriate and professional") are too broad.
Finally, even if your policies are in order, the prevailing wisdom is this: if you become aware of problematic social media communications, and you are convinced you must take action,  you must be very, very sure you can demonstrate the discipline is in no way connected to anything that could possibly be construed as concerted activity.