Social media and networking sites have become commonplace in today’s workplace. The most popular sites (such as Facebook, Twitter, LinkedIn, and YouTube) connect people by enabling them to search for former classmates, colleagues, and friends. Users can leave public messages for their “friends,” and/or create interest groups or “networks.” The problem for employers is that employees might be posting negative, misleading or defamatory information about their company, its employees or its products on social media sites. More and more businesses have instituted policies to help protect against posting such negative information on social media sites. A recent case settled by an employer in response to an unfair labor practices charge brought by the NLRB illustrates one of the pitfalls concerning such policies. The company, American Medical Response, had fired an employee for bad-mouthing her boss on Facebook. The NLRB held that the employer’s policy, which prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors,” was overly broad; because it violated Section 7 of the National Labor Relations Act, which permits employees to engage in “concerted activities for the purpose of … mutual aid and protection.” In settling, the company agreed to revise its social media policy to ensure the protection of employees’ rights to discuss working conditions.
Bear in mind that, even in a non-union workplace, employees have the right under the NLRA to share information regarding working conditions. Before taking disciplinary action against employees for their social media activities, consider whether the employee’s conduct could arguably constitute protected concerted activity.
To ensure that your social media polity does not violate employee Section 7 rights, we’d recommend following these guidelines:
- Employees may not use company equipment or systems to “twitter” or log onto social networking sites.
- Twittering on personal cell phones, Personal Data Assistants (PDAs), etc. may not interfere with working time.
- Employees should not tweet or post information on any social networking site on behalf of the employer, without approval by management.
- Employees may not use company logos or trademarks in tweets or twitpics (a service that enables users to post pictures to Twitter) or any other social networking site without company authorization.
- Employees may not promote the company’s products or services on any social networking site or online message board without prior management authorization and disclosure of their employment relationship.
- Employees may not post information on any social networking site that disparages the company’s products or services, contains false statements, or breaches the employer’s confidentiality policies.
- Employees who have any information on their social networking site about the company should provide a disclaimer on their profile page that the opinions are their own, and not those of the company.
Article courtesy of Worklaw® Network firm Shawe Rosenthal.
