If Facebook
has over one
billion users, then almost one in seven people on the
planet has at least one social media account. That’s a lot of people and a lot of employees,
so employers have taken notice. A recent
Proskauer
Rose survey found that 80% of employers have a social media policy, and 70%
have taken disciplinary action against an employee due to a social media
posting. Having a policy is good, but it
needs to be carefully crafted and thoughtfully enforced.
Here are some
things to think about when crafting, revamping, or enforcing a social media
policy:
1. Remember
other policies. A social media policy should reference – not
replace – other policies that exist to prevent harassment, prohibit discrimination,
control confidential information or protect intellectual property. Those policies apply to employee use of
social media just as they apply to other conduct, and are an appropriate basis
for employee discipline if a violation occurs on social media. A social media policy should not be a
catch-all.
2. Address
social media posts outside work if (and only if) they impact work. Sometimes
a posting made outside work impacts work directly, such as a threat against a
co-worker or the release of confidential information about a customer. Sometimes the impact is less direct, such as
a post that demonstrates an absence of judgment on the part of an employee for
whom judgment is a work requirement. For
example, the purported
PR guru's tweet about AIDS and Africa had a significant impact on her work because
it demonstrated what many felt was a remarkable lack of judgment from a public
relations expert. But would a posted photo
of an employee holding a beer, dressed in a T-shirt with the employer’s logo on
it, be of similar importance? Probably not. Policies suggesting how employees
should present themselves on social media should encourage respect and good
judgment. Disciplinary action based on
social media posts should be carefully considered and, if taken at all, taken
only in those situations where the impact of the post on the workplace is
clear, direct, and significant.
3. Remember
that “concerted activity” is protected by law.
Everybody has a bad day at work on occasion. If an employee tweets or posts about a bad
day or other unfortunate work situation, other employees may comment or
commiserate via social media, or may use social media as a way to communicate
about how to improve working conditions.
This is very likely to be protected by the National
Labor Relations Act as “concerted activity.” If an employer tries to stop
such communication, either through a policy prohibiting negative or disparaging
comments about working conditions or through disciplinary action, the result
could be complaints to the National Labor Relations Board and, perhaps,
protracted litigation. While confusion still exists on just
where the NLRB stands on social media policies, it is clear that employers
cannot use them to circumvent the protections of the NLRA.
4. Train
supervisors and employees about social media issues. Once an employer’s social media policies
and guiding principles for enforcement have been developed, training, training,
and more training is an essential next step.
Supervisors need to understand policies and enforcement guidelines well
enough to explain them and implement them fairly and consistently. Employees need to have ample opportunity to
understand why their private social media conduct may come under scrutiny by
their employer, and what the consequences may be.
5. Be
prepared for change. Social media
changes all the time. The issues and
challenges it creates for the workplace will change too. Employers need to be prepared for that and
ready to revise their policies and procedures as necessary in response.
Posted by: Kate Bischoff
