Over the last year, the National Labor Relations Board (NLRB) has issued a number of rulings pertaining to employee use of social media. These rulings impact how employers can word and enforce their social media policies.
“The NLRB has ruled that online employee comments and conversations — regardless of whether the employees are union or nonunion — are ‘protected concerted activity,’ similar to coworkers chatting around a water cooler, so long as they are more than ‘personal attacks’ against a specific person,” says Brendan Feheley, a labor attorney at Kegler, Brown, Hill & Ritter.
Feheley adds that while an employer can’t control every move its employees make online, employers do need to monitor content and be conscious about what employees are saying in order to protect their brands. At the same time, the employer needs to be careful not to violate employee rights or take actions that could be found to be discriminatory in nature.
Smart Business asked Feheley how companies should evaluate their existing social media policies.
What are some of the key areas where a company needs to protect itself?
The protection of trade secrets is very important. You have to be very careful about the types of recommendations employees give; they can’t endorse products without disclosing themselves as employees, and certain statements can constitute SEC violations. There is also a huge brand protection issue. Social media is the way Gen Xers and Millennials get their information, buy things and make decisions. You want to be sure your company is seen in a favorable light. Companies also need to be careful about how they approach their employees’ personal use of Facebook. You may want to mention in your social media policy that you may periodically monitor employees’ Facebook activity. If they are aware of this, perhaps they will take steps to protect their profile, which basically is a protection for both the employee and your company. Companies should be careful about running Facebook searches on job applicants. Wait until the initial round of in-person interviews has taken place to help protect your company against claims of discrimination based on a Facebook profile.
How can a company determine if its existing social media policy is strong enough?
Pay attention to what is going on in your specific workplace. Do you have problems? Are you seeing negative Facebook posts? Do you see instant messages going through Facebook? If so, is that causing a major problem with productivity? If you’re experiencing problems, change the policy to address them.
How can a company avoid infringing on employee rights?
Be in touch with how the courts are interpreting social media cases. Your policy cannot be overly broad. Put language in the policy that states that nothing is intended to violate state, federal, or NLRB laws. Be cautious any time you discipline an employee for something he or she does online. Discipline can mean many things — a written warning, a schedule change. It’s fine to talk with the employee; make sure they’re aware of what you want them to do. But be careful about disciplining them.
Does a company need a separate policy for every social media outlet out there?
Probably not. An alternative is to list each outlet and provide general guidelines for each. It’s also prudent to explain what types of information you monitor, save and may possibly read (e.g., instant messages and e-mails). Another thing to be aware of is the high risk that today’s camera phones pose. These devices make it very simple for employees to take pictures or videos of client lists and other confidential documents. You may want to consider adding wording to your policy that tells employees that if they use a smart phone at work — regardless of whether they own it or you own it — that you reserve the right to monitor the data and pictures stored in the device (similar to the way you might reserve the right to search an employee’s purse or bag).
How can a company best implement its policy?
Train your managers the best you can. There is a very fine line between Big Brother and the reasons behind the policy. Make sure your managers know you are monitoring the messages they give to employees about what employees can and cannot do. Managers shouldn’t be using the policy to threaten employees — but rather they should be promoting the policy as a tool that will protect everyone at the company. The policy should not be a sword, but a shield.
Who should be responsible for the social media policy and how often should they revisit it?
A committee should be responsible; it should be composed of a mix of employees including representatives from IT, HR and marketing. The policy will only be as good as its enforcement. Due to the rapidly changing nature of social media, the committee should meet once every two to six weeks — or at least once per quarter — to discuss developments. The IT folks might address how much time employees are spending online, the HR staff might bring specific online postings to the committee’s attention, etc. This is not the committee members’ regular job, so be sure the meetings are on the schedule so the discussions can take place.
BRENDAN FEHELEY, associate at Kegler, Brown, Hill & Ritter, specializes in labor and employee relations. Reach him at (614) 462-5482 or [email protected].
