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How Not to Police Employees’ Social Media

Companies seeking to balance the rights of their workforce against the safety of their reputation have to craft clear social media policies.

Bottom Line:  Companies seeking to balance the rights of their workforce against the safety of their reputation have to craft clear social media policies and stay abreast of the emerging body of law being created by the National Labor Relations Board.

The Triple Play Sports Bar in Watertown, Conn., might seem an unlikely backdrop for testing the legal limits of employees’ social media use. But after two employees were fired from their jobs in 2011 for posting Facebook messages that criticized their supervisors’ bookkeeping practices, the case eventually wound its way to the National Labor Relations Board (NLRB). The NLRB found in favor of the two employees, reasoning that their social media activity amounted to a concerted protest on behalf of their colleagues, not merely a newfangled twist on the airing of personal gripes.

The NLRB, a federal agency charged with guaranteeing employees’ rights, fields between 20,000 and 30,000 complaints annually. As social media use has surged, the NLRB has been forced to consider a rising number of cases regarding employees’ work-related exchanges on sites such as Facebook and Twitter.

Indeed, a 2012 study found that about 60 percent of working adults were connected with colleagues through a social media outlet, and 40.5 percent were linked to their immediate bosses. This blurring of personal and professional lines has, in turn, led to the trend of employees getting “Facebook fired” — i.e., being dismissed because of questionable social media posts that come to the attention of their coworkers or supervisors.

Meanwhile, companies face a worrying new source of wrongful termination lawsuits. If their social media policies — many of which were hastily rolled out in reaction to the era of “favorites” and “likes” — don’t jibe with the long-standing speech protections and collective bargaining rights outlined in the National Labor Relations Act, companies could be in trouble.

Against this shifting legal and social backdrop, the authors of a new Indiana University–Purdue University Fort Wayne study analyzed relevant cases of employees being terminated for social media activity and the NLRB’s recent rulings about corporate HR policies. Although social media use has become more prevalent, the gray area between employees’ free speech and companies’ legal protections remains largely unexplored. Accordingly, the authors offer four overarching recommendations for firms seeking to balance the rights of their workforce against the safety of their reputation.

  • Allow employees to express legitimate opinions about their working conditions on social media, but don’t give them license to ridicule the company or its customers. In contrast with the employees in the Triple Play Sports Bar suit, there’s the case of the car salesman with an unfortunate sense of humor. After a 13-year-old ditched his parents on the lot and test-drove an SUV into a shallow pond, the employee posted a Facebook photo of the incident with the caption “Oops!” The NLRB upheld the employee’s termination, ruling that the post amounted to an individual trying to cause embarrassment, not one designed to improve employment conditions on behalf of coworkers.
  • Craft social media policies that avoid ambiguity. Effective social media guidelines for employees must not forbid the legitimate airing of grievances, and should depend upon specific examples of prohibited conduct. Otherwise, the NLRB views them as overbroad. The board has ruled against policies that fail to spell out which types of information employees should not post, or that lean on vague terms such as appropriate, professional, respectful, or unfavorable. Companies should also avoid subjective, case-by-case evaluations of employees’ social media activity. Even if the content of a post is negative, the NLRB has ruled, employees should be allowed to discuss collective issues such as wages, hours, and safety issues on social media.

Effective social media guidelines for employees must not forbid the legitimate airing of grievances.

  • Learn from other firms’ language mistakes. The NLRB has consistently frowned upon policies that seek to ban profanity, prohibit gossip, or insist that employees be courteous in their social media posts. However, narrowly tailored policies that definitively spell out or italicize inappropriate activity, especially if the ill effects are linked to company morale, tend to curry more favor with the board. Policies requiring employees to display disclaimers that their postings represent their own opinion and not that of their company may be intended to encourage workers to speak freely, but the NLRB has also interpreted such policies to be overly restrictive.
  • Keep up to date on case law. Given the real-time, fast-moving nature of social media, the law will evolve quickly. The NLRB posts its rulings as soon as they’re announced. But large firms should also make social media a key concern of their in-house lawyer or attorneys on retainer — especially when they’re drawing up HR policies.

The NLRB took issue with the majority of social media policies it considered, the authors found, in large part because they failed to account for concerted action — the idea that employees are perfectly entitled to raise questions about their work environment as long as they represent a group interest.

Although guidelines prohibiting sexual harassment, hate speech, or discrimination on social media should be fundamental for all companies, other caveats might be more applicable to particular industries. Healthcare firms should pay special attention to patient confidentiality, the authors note, and tech companies would do well to address copyrights, patents, and intellectual property rights. Marketers should receive even more specific instructions, because their social media activity encompasses an increasingly large and crucial component of their job description — one that often requires them to be edgy and attention seeking.

Bringing in outside consultants to train employees on responsible social media use can increase workers’ abilities to disseminate information and avoid the pitfalls of online posting; however, doing so does not amount to a legal protection, the authors warn — at least, not in the eyes of the NLRB.

Source:Fired for Facebook: Using NLRB Guidance to Craft Appropriate Social Media Policies,” by Gordon B. Schmidt and Kimberly W. O’Connor (Indiana University — Purdue University Fort Wayne), Business Horizons, Sept./Oct. 2015, vol. 58, no. 5

Matt Palmquist

Matt Palmquist is a freelance business journalist based in Oakland, Calif.

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