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