The National Labor Relations Board recently released findings of 14 cases in the use of social media for discipline and/or discharge of employees and it was a bit of a wake up for me. To save you the raw-excitement of reading government reports I decided to summarize what has been detailed along with some recommendations. SMALL PRINT: I am not even close to legal counsel so please review this with your general counsel to see how it might affect your organization.
Reading through this I was once again reminded that stupid things are often lawful and usually protected by some law. That is now extended to social business and employees use of social media. Not to downplay these items as they affect companies in every shape today- EVERY COMPANY. Regardless of if you have a social media/social/internet policy your actions or inactions and the discipline of employees is very serious.
Facebook Post by employee is protected
Not all posts by employees on Facebook are protected but in this particular case where an employee who is a bartender who complained and made remarks about the employers handling of witholding taxes and how they owed money because the employer didn’t do it correctly. Other employees chimed in and commented and “liked” the comment. The NLRB found that the conversations and comments were protected because they fell under the Meyers rule where the activity is protected is it is “engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself” – in short since it was a concerted employee discussion it is protected. In contrast in another case where an employee complained about a tipping policy where no one commented or liked or concerted with the remark – it was not protected.
Your Policy
The NLRB makes it pretty clear that regardless of if you have a policy on social media or media, you can’t take action against an employee if they are discussing wages, work conditions or hours online or otherwise – part of a protected concerted activity. To break that down protected are items like wages, work conditions and hours. Concerted are with or on on behalf of another employee. It really doesn’t matter how or where this is done and in this example that where is a Twitter, Facebook, Google+, LinkedIn, Yammer and more.
The NLRB also talks about policies that are too broad. That means a statement that really is so large and ambiguous that its unenforceable. You are almost better to have no policy than a broad one because being found with a policy that is too broad could in itself be a violation.
A pretty simple example would a company that had a blogging policy about “making disparaging remarks about the company or its supervisors” and from talking about the company “in any media without the company’s permission.” And another that seems more inline but was considered too broad stated that an employee cannot use social media to “violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.” This had great intentions like protecting trade secrets but NLRB felt it too broad – under that statement you tweeting about someones smelly feet would be a violation. And one that I see a lot is the “excessive use of the internet, email and social media sites” as a policy. The NLRB says that today there is no excessive use because an employee can always point to a more egregious violator. The NLRB feels that a company can’t prohibit employees from discussing company, employee or competitors online.
Some recommendations
Download the report and pass it on to your general counsel to see what and how this affects you. I can’t think of a social media policy that I have read in the past year that hasn’t violated this. This serious and you can now really lose some big money for violation of these rights. If you are a union that has either an internal or external social spaces, take particular attention of these new rulings because they talk of how you monitor these spaces and actions made based on the monitors.
I would take particularly close attention to policies that are too broad. If your counsel tries to have a catch all, challenge that and think about not having a policy at all because there are now decisions that support that a lack of policy may provide great protections.
Lastly, and I always say this to clients – this is an evolving ecosystem. A policy should be as fluid and changing as the world we live in. It should involve key stakeholders – not just legal and the C-Suite. With email we had a fairly level base-line – we don’t that luxury in social. But don’t be afraid, common sense policies that are well thought out and passed through expert labor law review, should do fine. Alas a wake up call, but better clearer guidance than none – which has been the case to this point.
Its important to note that the National Labor Relations Act (NLRA) mostly covers employees acting in concert with or on behalf of other employees. When employees begin to band together to discuss, complain, etc that’s when the NLRB can impose itself.
If an employee is acting alone, they are probably not going to be protected through NLRA unless they are in a union.
Its also important to note that many classifications of workers are not covered by NLRA:
– employed by Federal, state, or local government
– employed as agricultural laborers
– employed in the domestic service of any person or family in a home
– employed by a parent or spouse
– employed as an independent contractor
– employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered)
– employed by an employer subject to the Railway Labor Act, such as railroads and airlines
– employed by any other person who is not an employer as defined in the NLRA