Can Your Boss Determine What You Can and Cannot Post?

With laptops, tablets and smart phones at our fingertips, the presence of social media in our lives is ever growing. In a previous post (http://goo.gl/d7eC9e), I discussed what employers could and could not access in regards to their employees’ social media posts. Keeping our clients up to date on such policies helps them to avoid costly legal issues.

Do your Employee Social Media Policies Violate the National Labor Relations Act?

Accessing employee social media posts and information is not the only issue at hand, when it comes to social media. As demonstrated by two recent court cases, UPMC, et al v. SEIU Healthcare Pennsylvania and  World Color Corp. v. Graphic Communications Conference of the Internal Brotherhood of Teamsters, there are other potential legal issues restricting what employees can and cannot do through internet communication. Furthermore, disciplining employees for social media use may also open the door to civil litigation.

The National Labor Relations Board is currently examining social media policies of many businesses. The NLRB is enforcing the right of both unionized and non-unionized employees to “engage in concerted activities for the purpose of . . . mutual aid or protection.” In doing so, the NLRB hopes to deter employers from scaring employees out of excising their rights.

Be Clear, Be precise and Give examples.

While examining such policies the NLRB looks for ambiguous or overly broad employer rules and policy language.  Such rules and policies are in violation of the National Labor Relations Act. In the first case mentioned above, an NLRB Administrative Law Judge reviewed an employer’s electronic mail and messaging policy. It was written in the policy that employees were “prohibited from using the company’s electronic technology in a way that is ‘disruptive, offensive to others, or harmful to morale’ or ‘to solicit employees to support any group or organization, unless sanctioned by management.” Such terms as “disruptive”, “offensive to others” and “harmful to morale” were deemed as ambiguous due to the lack of examples within the policy. Employees would not be able to determine what constituted disruptive, offensive, and harmful social media action. Thus, the policy was in violation of the NLRA.

In the second case, an employee who was terminated, sued his employer for having violated his NLRA rights. He alleged that he had been reassigned within the workforce because of his social media postings. Despite his testimony being the only form of evidence for the allegation, the judge declared that the employee had been punished, in this case reassigned, due to his social media posts and therefore his NLRA rights had been violated.

Employer Guidelines:

While both cases have been appealed, avoiding such situations to begin with is the ultimate employer option. Keep in mind the following tips when forming your business’ social media policies. Following these tips may be the difference between  a healthy business and a business related lawsuit.

  • When forming social media policies, avoid ambiguous terms. Provide examples of what is expected from employees in regards to social media as well as examples of what types of posts are not allowed. Leave nothing to interpretation. This will demonstrate the employer’s desire to protect his or her business rather than suggest an impermissible desire to restrict employee rights.
  • Provide proper employee training based on your social media policy. This will give employees a clear picture of what is expected of them.
  • Finally, always consider whether an employee’s social media activity is protected under the NLRA before taking disciplinary action.
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