NY Startup Law

A businesslaw blog for New York entrepreneurs by Marc Law Associates PLLC

THE 3 MAIN THINGS YOU NEED TO KNOW BEFORE ISSUING A SOCIAL MEDIA POLICY

One of the first things a company should do prior to hiring anyone is create work policy in a written form to give to all employees so that they will know what conduct you will and will not tolerate as an employer.  In this brave new world of the Facebooks, Linked Ins, Googles, etc. many human resources divisions are now issuing social media policies as either a provision in the employee policy or a separate policy document altogether.

The government polices social media policies through the National Labor Relations Board (NLRB) which was created to enforce the National Labor Relations Act (NLRA). One usually hears the NLRB mentioned in union disputes. However, the NLRB, which was created by Congress’ adoption of a bill introduced by Senator Wagner in 1935, aka the Wagner Act, regulates the treatment of non-union employees too. The NLRB protects non-union employees acting in “concerted activity”, which the NLRB has defined as two or more employees taking action to improve the terms of employment or working conditions and a single employee acting as a spokesperson for other employees, or trying to induce other employees to take action. So, if your employees use  social media to engage in concerted activity, guess what????

The General Counsel of the NLRB recently published a memo that analyzed a few recent decisions by the agency that can give guidance in how to shape the social media policy for your company and police it thereafter. There are three main things you should know:

1) YOUR SOCIAL MEDIA POLICY CAN’T LIMIT CONCERTED ACTIVITY

You can’t institute a policy that expressly limits an act that is covered under Section 7 of the NLRA, which gives employees the right to self organize, create unions, bargain collectively through chose representatives or engage in concerted activities to further these rights. Importantly, this includes policies that employees would “reasonably construe” as limiting these rights.  One example was when the NLRB ruled that a policy violated the NLRA because it restricted “inappropriate conversation”. The NLRB held that any employee would be scared to post a complaint about the work environment, which is a protected right,  for fear of violating this policy.

2) YOU CAN’T FIRE AN EMPLOYEE FOR USING SOCIAL MEDIA TO COMPLAIN ABOUT WORK CONDITIONS OR WAGES

The report cited several instances where employees Facebook rants were protected since they fell under the concerted activity rule. Employees that complained about their supervisors or assignments were covered and won their jobs back especially if the posts were shared with their other employees, and the recipients actually commented or even liked the post.

The line was drawn in one case where the NLRB excused the firing since no other employees took action as a result of the comments, the few that did respond were not her facebook friends, and the employees that were facebook friends did not respond to the comments. The NLRB called her post “merely an expression of an individual gripe”, holding that she had no audience in mind when posting it and no language that indicated  inducement of her co workers.

3) YOUR POLICY CAN NOT BE OVERBROAD

This essentially means that your social media policy can’t be so broad that it can restrict employee activities that would be allowed under their right to act in concert. One example was a policy that restricted employees from identifying themselves as employees unless it was done in an “appropriate manner”. I’m sure you wouldn’t consider an employee posting on Facebook that your company sucks because you don’t pay overtime unless she begs for it, acting in an appropriate manner. Guess what? It’s related to work conditions, and wages, both of which are protected.

In fact, the NLRB report states that in one case it held that a policy was overbroad even though it limited its restrictions to non employee communication since unions are permitted to speak to the press about their working conditions. In the same case, the NLRB struck down a provision in the company policy that restricted employees from using its trademarks without approval. The agency reasoned that this would be the same as restricting unions from using company logos on picket signs to protest working conditions.

In my opinion, this will be a challenging law to police in the future. Social media is becoming so prevalent in many marketing plans that this area of the law should be given great consideration by human resource professionals. The drafters of these policies should give special consideration to use language that excludes protected rights  to act in concerted activity or more precisely any communication that concerns workplace conditions that are meant to bring attention to them. I know this will be painful for many, but what’s the use of drafting a policy to control behavior that may cost you time and money or even worse having to rehire someone that you know hates your guts? My advice is to draft a compliant policy and keep your employees happy. I know, easier said than done…..

 

 

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