HR|Experts Update: Social Media and the Workplace

Facebook, LinkedIn, Snapchat, Instagram, Twitter — Social Media permeates our society both on a personal and professional level.  Employers use social media to market their companies, recruit employees, and for internal communications.  Employees use social media to post comments and pictures about their personal opinions, their families and friends, and sometimes about their employers.  It’s everywhere!  The question many of you have as an employer is where to draw the line.

What if an employee posts negative comments about the workplace or co-workers online?  Can you terminate them?  It depends.  What if they post derogatory comments about their supervisor, can you terminate?  Once again, it depends.  What if they post a picture of your practice and say something negative about your patients?  Surely, we can fire them, right?  Employers have to walk a very fine line when it comes to social media.  It can be a delicate balance between protecting the employee’s rights to engage in lawful activity and the employer’s right to conduct and protect business interests.

There are some employee communications on social media that may be protected by the National Labor Relations Act (NLRA). For example, protected employee communications may include the following:

  • Complaining about unsafe conditions, unethical behavior, etc.
  • Protesting wages, hours or working conditions
  • Communicating with co-workers on social media about wages, hours, or working conditions

These types of activities constitute “concerted activity” and are protected under the NLRA whether your employees are covered under a collective bargaining agreement or not.

Companies whose employees don’t have access to the Internet at work may think they don’t need a handbook policy on social media. Though employees may not have access to the Internet on company equipment, many posts are made from personal devices while at work.  In addition, employee posts on social media are often made away from work and may include remarks about work situations, confidential company information, or harassing remarks about another employee. Having a policy in place makes employees aware of proper use of social media relating to work discussions. It also lets them know that inappropriate use in violation of the policy may result in disciplinary action.

In “The NLRB’s Social Media Guidelines A Lose-Lose: Why the NLRB’s Stance on Social Media Fails to Fully Address Employer’s Concerns and Dilutes Employee Protections,” Chris Schlag outlines the NLRB’s recommendations on what employer policies should include:

  • Explanation that employees are free to express their own views and opinions on social media, but may be held responsible for those statements;
  • Concise and detailed definition of the types of information an employee is not permitted to disclose (i.e. confidential information or trade secrets);
  • Definitions with specific examples of communication that will be prohibited under the company’s policy of anti-discrimination, harassment or bullying;
  • A clearly worded statement that the policy will not be applied in a way that restricts an employee’s use of social media to engage in protected activities.

If you currently have a policy and would like to ensure it is up to date or do not have a policy in place and would like to implement one, please contact Medical Mutual’s HR|Experts consultant for more information at breni.malpass@callhrexperts.com or 1.888.473.9778.

Source:  Schlag, C. “The NLRB’s Social Media Guidelines A Lose-Lose: Why the NLRB’s Stance on Social Media Fails to Fully Address Employer’s Concerns and Dilutes Employee Protections,” Cornell HR Review, Sept. 3. 2013, http://www.cornellhrreview.org/wp-content/uploads/2013/11/Schlag_Chris_The_NLRBs_Social_Media.pdf

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