Author: Lisa I. Fried-Grodin, Meyers Fried-Grodin LLP
Many employers put off drafting policies and procedures regarding employee use of social media and social networking sites for fear of a backlash from employees. However, the aftershocks that an employer faces if an employee discloses corporate secrets, harasses a co-worker online or tweets about the employer's customers are significant. Employers that draft and implement effective policies and procedures to deal with employee social media use can minimize such risks and gain many benefits.
Further, employers must be aware of the recent NLRB activity addressing employee social media use as the NLRB is willing to strike down policies that prevent employees in both union and non-union workplaces from engaging in protected concerted activity and collectively discussing the improvement of working conditions.
Step 1: Recognize the Benefits
When employees know that employers monitor employee use of social networking sites during working hours and on employer-provided equipment and systems, employees are less likely to engage in conduct which harms the employer.
The benefits to implementing a social media policy include the following:
- Maintaining a productive workplace. While many employees regularly log on to Facebook while at work, most social networking activity is not usually related to work. Keeping employees focused on work-related tasks will ensure that work is performed is a timely manner. Employers who seek to limit use of social networking sites at work can improve employee productivity.
- Protecting the employer's reputation with customers, clients and the business community. Any time an employee associates himself or herself with the employer on a social networking site, this immediately reflects on the employer's reputation in the business community. Thus, limiting what an employee can say on a social media site is a wise decision as it diminishes negative publicity caused by unchecked online postings about the employer.
- Maintaining the security of trade secrets and confidential information. Employers who hold employees to non-disclosure obligations and limit what an employee can disclose online will help to protect an employer's valuable trade secrets and proprietary and confidential information.
- Preventing damaging employee posts. If an employer monitors social networking sites, employees are less likely to post harmful information. Warning employees of disciplinary consequences for releasing non-public or proprietary information eliminates the possibility that employees will post such information.
- Reducing potential liability from third party lawsuits. Employers that seek to limit social media activity at work and/or take swift, corrective action upon learning that an employee posted inappropriate content online may have a defense to a lawsuit brought by a third party harmed by the post. Indeed, some courts have prevented victims of harmful online posts from proceeding with tort claims against an employer that did not know its employee issued the post, but took swift action to discipline or terminate the employee upon learning of the conduct.
Step 2: Consider the Risks
While publishing and enforcing a social media policy can have many benefits, unfortunately, it can also bring unexpected negative ramifications to employers. These include:
- Potential violation of Section 7 of the National Labor Relations Act (NLRA) if an employer publishes a policy or restricts employees from engaging in protected concerted activity by discussing the improvement of wages, hours and working conditions with co-workers through social media or disciplining employees for such conduct;
- Complaints from employees regarding violation of privacy rights;
- Decreased employee morale if employees believe they are constantly being watched;
- Potential violation of state off-duty conduct laws if an employer disciplines an employee over a post sent after working hours;
- Potential violation of whistleblower laws or the anti-retaliation provisions of state and federal discrimination laws if an employer disciplines an employee because that employee complained of illegal conduct or discrimination in the workplace; and
- Potential violation of state and federal laws preventing individuals from accessing the computers or electronic data of others without prior consent.
Step 3: Draft a Comprehensive Social Media Policy
Employers should draft a comprehensive social media policy that includes the following provisions:
- Employees have no reasonable expectation of privacy. Employers should advise employees that they have no reasonable expectation of privacy at work or when using employer-provided equipment. Therefore, employees should proceed at their own risk when seeking to use social media during working hours or using the employer's communications systems.
- Employer will monitor. The policy should advise employees that the employer will engage in regular, routine and/or random monitoring of employee use of social media and other websites while on work time or when using employer-provided equipment and networks. A policy that merely states that an employer may or has the right to monitor such communications may be insufficient to establish employee consent to monitoring as required by many state and federal laws.
- Clearly define acceptable and unacceptable conduct. The policy should provide employees and supervisors with a clear understanding of what is acceptable and unacceptable conduct and clearly identify prohibited messages and identify the consequences for violation of the policy. Examples of prohibited conduct include disclosure of confidential information and trade secrets, discriminatory, abusive, harassing, pornographic and malicious content, and comments threatening violence. These terms should be clearly defined. Employees should demonstrate proper respect for the privacy of others. The social media policy should not expressly prohibit disruptive, rude or offensive comments about the employer, management or co-workers. Further, the policy should not prohibit disparaging or defamatory comments about the employer, employees, officers, customers etc. and their products/services through the use of social media as this may constitute protected activity. The policy should not prohibit the disclosure of personnel information and documents because this could be construed as prohibiting employees from discussing wages and other terms and conditions of employment with union representatives.
- NLRA activity. The policy should expressly make clear that it does not prohibit employees from engaging in concerted activity that is covered by the NLRA. It should also not expressly prohibit disruptive, disparaging or defamatory comments about the employer, management or co-workers. Based on recent guidance from the National Labor Relations Board (NLRB), any policy provisions that attempt to restrict or prohibit employees from engaging in protected activity and discussing wages, hours and working conditions may be found unlawful.
- Advise employees that postings are public. The policy should advise employees to think carefully before posting online, because despite privacy settings, online postings are public and employees cannot always be sure who will view, share or archive the information that is posted.
- Do not post confidential information. The policy should make clear that employees should comply with non-disclosure and confidentiality obligations and employees should not share any confidential or propriety information about the employer, including information about trademarks, upcoming product releases, finances, company strategy, or any other information that has not been publicly released by the employer. Confidential information and trade secrets should be clearly defined.
- Employees should not represent the employer. Employees should not attempt to speak on behalf of or represent the employer without explicit permission. Employees should be advised to obtain authorization or permission before posting a message in the employer's name or that may be attributed to the employer. The employer should make it clear that it does not prohibit the employee speaking with the media, the government or third parties.
- Be respectful and appropriate. Employees should be as respectful and appropriate in their online postings as the postings may be viewed by the employer, co-workers, colleagues, customers and clients.
Step 4: Distribute and Communicate the Policy to All Employees
The social media policy should be distributed and disseminated to all employees. The best place to include the social media policy is in the employee handbook. However, employers may also want to include a copy of the social media policy on the employer's intranet.
Step 5: Obtain Employee Acknowledgement and Consent to Employer Monitoring
It is best practice for an employer to obtain acknowledgment and consent from employees that employees have read the social media policy, understand its parameters and agree to abide by it. Employees should further acknowledge that they consent to employer monitoring of social media use. Copies of the signed acknowledgment form should be put into employee personnel files.
Step 6: Do Not Ask Employees to Provide Confidential Passwords to Personal Social Media Accounts
While it is permissible to monitor employee use of social media sites, employers should not require employees to provide employers with passwords to personal social networking sites or accounts. Most employees would only consider proving such a password under duress, and some state and federal cases indicate that such circumstances may not be sufficient to obtain the consent that state and federal statutes require.
Further, employers should be aware that there is a recent trend among federal and state legislatures to pass legislation dealing with social media privacy and password protection. This legislation would prohibit employers from requesting or requiring that employees or applicants provide user names, passwords and other ways of accessing personal information on online websites such as Twitter and Facebook as a condition of their employment. The purpose of the proposed laws is to prevent employers from accessing private and personal information through social media activity of employees and applicants and using this as the basis for an adverse employment decision. It also prevents employers from monitoring the off-duty, private social media activity of already-hired employees.
Step 7: Maintain Ownership of Social Media Accounts Established for Business-Related Purposes
In order to avoid confusion, employers should clearly state in their social media policies that all social media accounts on websites such as Twitter and Linked In that are created by employees for business, marketing, and networking purposes remain the property of the employer at all times. Further, the policy should clearly state that all information including the account, the login and password should be returned to the employer at the end of the employee's employment. The policy should further advise that no employee has the right to use the account after termination of employment and only the employer is permitted to change account names and settings. Employers should make sure that all employees acknowledge consent to these terms before creating or accessing business-related social media accounts. Employees should be reminded of the agreements and policies at the time of termination and employers should ensure that they obtain all relevant logins, usernames and passwords during an exit interview. Additionally, an employer may want to consider changing the password at the time of termination in order to avoid confusion.
Step 8: Train Employees on the Policy and Enforce the Policy Consistently
For a social media policy to be effective, it must be properly communicated to all employees and enforced consistently across the workforce. Issuing a carefully drafted social policy will be ineffective if employees do not know about or understand it or it is not enforced. Training staff and management is important for maximum effectiveness, and to avoid situations where the policy says one thing and a manager sends a conflicting message to employees.
Step 9: Update the Policy Regularly
As technology is constantly changing, employers will need to regularly update and amend the social media policy with reference to new or amended state and federal laws and recent court decisions. Further, the NLRB has been very active and decided a number of cases addressing social media use which require employers to frequently review, revise and update their social media policy. These cases suggest that the NLRB will strike down any policy provisions which could be reasonably interpreted to chill the right of union and non-union employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Therefore, it is important for employers to be apprised of changes in the law and communicate any relevant changes to employees.
Step 10: Use Caution When Implementing a Social Media Policy and Disciplining Employees for Social Media Use
While employers should not hesitate to discipline employees and terminate them, if necessary, for any commentary, content or images that are pornographic, harassing or libelous or for anything that creates a hostile work environment as this may expose an employer to liability, employers should be very careful when it comes to discipline. Employers must be extremely cautious when implementing a social media policy and disciplining employees for social media use as to not violate labor, discrimination or whistleblower laws.
Under Section 7 of the NLRA, employees at both unionized and nonunionized workplaces cannot be disciplined for engaging in protected concerted activity and gathering together in an online forum to discuss improving their wages, hours and working conditions. An employer violates Section 8(a)(1) of the NLRA by interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 to engage in union activity or protected concerted activity for the purpose of collective bargaining or mutual aid or protection. In fact, in August 2011, January 2012 and May 2012, the NLRB issued guidance specifically dealing with social media policies and enforcement in the workplace. Relying on this guidance, the NLRB issued a number of decisions in late 2012 and 2013 addressing social media use.
Based on the NLRB guidance, it is clear that employee gripes about work, supervisors, the employer, salaries, or other co-workers on a social networking site may be deemed to be protected activity by the NLRB if the employee is seeking to induce others at work to act collectively. In other words, if several co-workers are discussing these types of issues on Facebook or one employee starts such a Facebook discussion after having a conversation about it with other co-workers, the NLRB could deem such posts to be concerted activity under the NLRA. On the other hand, if an employee posts a message on Facebook about something that he or she does not like at work, had not discussed the issue with anyone at work before hand, does not post the message in an attempt to get others at work to complain about the same issue, and no other employee responds to the post, such a post will likely not to be deemed to be concerted activity by the NLRB.
Further, recent NLRB activity suggests that any provisions of a social media policy that interfere with the Section 7 right under the NLRB to engage in protected concerted activity will be found unlawful. Thus, employers should proceed with extreme caution when drafting social media policies and enforcing their provisions. Additionally, employers should also exercise caution if an employee creates posts claiming that the employer is violating the law or treating people of different protected classes differently. Such communications may be protected under state or federal whistleblower statutes and state or federal antidiscrimination statutes.