Social Media Policies and Protected Activity
HRComp Warns Employers Without Policies Could be Vulnerable
KNOXVILLE, Tenn., Sept. 8, 2012 /PRNewswire-iReach/ -- This may not be a topic that immediately jumps out as being an important one, but for legal and practical reasons, it is crucial for all employers to implement a social media policy. This area encompasses several different aspects of social media use, so it is essential even if employees do not have access to social media at the workplace. After carefully drafting a social media policy, employers should place it in the employee handbook so that all employees are on notice of the policy.
One of the major social media concerns for employers is employee productivity at work. A productivity policy must detail the proper and improper uses of work equipment. The details of the provisions may vary depending on the company's type of industry or employee job duties.
Additionally, employees need to understand that they have no right to privacy with regard to social media in the workplace. Employers should make it clear that they always have a right to monitor or retrieve data pertaining to social media use at work, even if they rarely exercise that right.
Another concern for many employers is the fear that confidential company information may be improperly communicated outside the company. Even though a general company confidentiality policy may already exist, confidentiality guidelines should be reinforced in a social media policy. It is easy to imagine a scenario in which an employee thinks he can get away with anonymously posting confidential company information on a social media outlet, so employers need to be able to protect themselves by showing that an applicable policy exists and that all employees have acknowledged receiving notice of it.
Social media policies are a major topic right now because the National Labor Relations Board (NLRB) has addressed it repeatedly in recent years. In particular, the NLRB is concerned with protecting concerted employee activity under the National Labor Relations Act, and it has made it clear that this protection applies whether or not employees are part of a union.
With this in mind, it is important for employers to understand what is and is not concerted employee activity. Activity may be concerted when two or more employees act together to improve wages, working conditions, or other terms of employment, although the action of a single employee may be considered concerted if the employee either involves co-workers before acting or acts on behalf of others. It may be tempting for an employer to take disciplinary action against employees who are openly discussing the company in a negative manner on Facebook, but this could open up the company to an investigation or lawsuit.
Although the NLRB has broadly construed the definition of "concerted activity," it has identified behaviors that may cause an employee to lose such protection. Reckless or malicious behavior, such as threatening violence, spreading lies about a product, or revealing trade secrets may cause an employee to lose the concerted activity protection. For instance, a reporter was recently terminated for writing inappropriate and offensive posts on a social media network that did not involve protected concerted activity, and an NLRB investigation found no violation on the part of the employer.
This is a fairly new area of regulation, so some social media problems that employers may encounter do not yet have a clear answer. The best thing employers can do to protect themselves is to develop a social media policy with the assistance of counsel, include it in an employee handbook, and obtain acknowledgements of receipt from all employees.
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