Free Social Network Speech
Social media policies cannot just restrict employees' right of free speech. The policies must be fair and enforceable in court.
Get that social networking policy right. Too broad or too vague and you may be facing the National Labor Relations Board (NLRB).
In these days of increased social media messages, people often express their views and complaints in both private and public (online) venues. As a result, increasingly, employers have been attempting to limit what employees publically post online. Making your boss angry may provoke an effort to punish you, but the employer is constrained by labor law. As an employee, you do run the risk that you can still be penalized for some other work related infraction which can be used even if the social media posting is the real reason for punishment.
However, when it comes to the clash of employees' right to free expression on social media and employers' desire not to have employees disparage the company, it's important to understand where the law and regulations come down. In general, whoever is writing social media policies must keep in mind that the employer cannot just restrict their employees' right of free speech. The policies must be fair and enforceable in court.
Employers naturally want to discourage comments that are negative about them. These policies are in some cases draconian, such as you will be fired if you disparage managers, the company, or co-workers. However, a series of rulings by the National Labor Relations Board (NLRB) have determined that such blanket restrictions are not legal. Employees have the right to discuss working conditions freely without the threat of punishment, whether the comments are at the office, at home or with friends or on Facebook.
This is not making some employers happy. They think the NLRB has gone too far, stating that the original intent of the NLRB's rules dealt with unionized worker speech in the industrial age, not every worker today. In response, the NLRB says it is applying traditional rules to new technology.
As an example, the NLRB recently issued a report (see "Acting General Counsel issues second social media report") that provides guidance to practitioners and human resource professionals.
This report's "Operations Management Memo" covers 14 cases. Seven of these cases examine corporate social media policies, of which five of were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.
The other half of the cases involved employee discharges after they posted comments to Facebook. Several discharges were found to be unlawful because they were based on unlawful policies. In one case, the discharge was upheld despite an unlawful policy because the employee's posting was not work-related. The report, which does not name the parties to the cases or their locations, illustrates that these cases are fact-specific, not generalized.
The report emphasizes two main points:
"Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."
These cases will be growing, not shrinking in the near future. The Acting General Counsel has requested all regional offices to send cases which the Regions believe to be meritorious to the agency's Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach.
Anyone tasked with the job of writing acceptable polices should read the report. Each of the 14 cases makes a point that should be considered and avoided when writing the policies. The best policies protect the employee first and then the organization. Protecting the organization first usually leads to illegal policies that will cost the employer legal fees, harm the employer's reputation, reduce employee morale and the employer's ability to attract desirable workers.