More than ever, employees are sharing their lives and work experiences on social networking sites like Facebook, LinkedIn, Twitter, or Instagram. Not surprisingly, a sizable percentage of those posts convey negative information about the person’s employer or co-workers. At the same time, employees may post information that, even if unrelated to the workplace, embarrasses the employer or demonstrates a lapse in judgment so severe that your reaction might be: “Not counting today, how long did this person work here?”
A recent study indicates that 43% of employers have had to deal with employee misuse of social media, and 30% have taken disciplinary action against an employee based on such misuse. As a result, many employers would like to adopt policies to address such misuse; however, recent court decisions create some difficulty in doing so.
The problem arises from the unlikeliest of places: Traditional labor law. The National Labor Relations Board and several federal courts have taken the position that some social networking activities constitute “concerted activity” under Section 7 of the National Labor Relations Act.
Without getting into the details of the decisions, there are two conditions that have to be met in order for social networking to constitute “concerted activity.” First, the communications must address the terms and conditions of employment. Second, they have to involve communications with other employees.
Terms and conditions include matters such as pay, hours, complaints about the quality of the staff, and complaints about supervisors and management (even if the employee uses profanity). Any communications of such ilk may be protected. However, complaints or nasty comments about the employer’s goods or services, customers or clients, or statements not related in any way to working conditions or the employer are not protected.
Communications between employees include posts that go out to co-workers who are Facebook, LinkedIn, Twitter, or Instagram friends (even if the post includes non-employees), responses to such posts by co-workers, or surveys of other employees. On the other hand, personal gripes that do not involve other employees and posts that are not addressed to nor read by other employees may be restricted.
Even if communications fall under these categories, they still may be the subject of disciplinary action under limited circumstances. If the comments are made on Company time and in violation of Company policy regarding internet usage, you can take action. If the comments are maliciously false or “opprobrious” (not sure what that means, but if it would make a sailor pass out, that probably fits the bill) they are fair game for discipline. The same would be true for communications that violate other laws (such as comments that use racially offensive terms or threaten violence).
For the most part, these rules regarding social networking are no different than the rules for any other communications between employees. The difference is that such communications are becoming increasingly public and problematic. Given that, there is real value to having a social networking policy in your employee handbook.
Such a policy should include:
- Prohibiting use of social networking at work;
- Prohibiting use of company equipment for social networking;
- Content restrictions; and
- Restrictions on language that would suggest Company endorsement or approval of comments.
In the event that you feel you need to take disciplinary action regarding a social networking post, we suggest you first obtain legal counsel in order to minimize the risk of such action being perceived as an attack on protected “concerted” activity.