Social media is everywhere and is here to stay. This summer we have seen the good side of social media through the wonderful on-the-spot news updates during the revolutions and uprisings in the Arab world, most recently in Libya and Syria. We have also been witness to the dark side, as demonstrated by the downfall of New York Representative Anthony Weiner and his unfortunate distribution of inappropriate personal pictures through Twitter. The ubiquity of social media has caused a headache for employers, however. Just how much can and should an employer regulate the social media use of its employees?
Employers can regulate social media, but should do so carefully
Though employers can regulate their employees’ social media use, employers need to use caution and do so through carefully-established written policies. In cases where complaints have been filed by employees regarding adverse employer action based on social media use, employers have prevailed where the actions were taken consistent with preexisting written policy.
For example, on August 18, 2011 the National Labor Relations Board’s Office of General Counsel released a summary of fourteen NLRB cases involving social media from July 2010 to August 2011. [Note that the National Labor Relations Act, under which the NLRB acts, applies to most private sector employees whether or not the workplace is unionized.] This document can be viewed at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.
In short, except in four specific cases where the use of social media constituted concerted activity regarding terms and conditions of employment, the NLRB held that employers could in fact discipline and terminate employees for derogatory and offensive social media posts about the employer or other employees. In each of these cases, however, the employer had carefully-drawn social media policies which themselves did not prohibit the use of social media for protected concerted activity.
In contrast, the NLRB rejected employer actions taken under social media policies deemed to potentially infringe on protected concerted activity. In one case, a nurse posted a complaint on her Facebook page about a coworker’s frequent absences along with a request for other employees to contact her with any additional information. The nurse was terminated on the basis that the post was in violation of written policy forbidding the dissemination of private or confidential information. Though the nurse was clearly engaging in concerted activity in this example, thus making her discharge inappropriate, the NLRB also noted that the written policy was flawed since it was overbroad. There were no limitations or examples in the written policy of what was deemed “confidential” or “private,” and the policy could be reasonably interpreted to reach concerted activity regarding terms and conditions of employment.
So how should I regulate social media?
The first step in regulating employee use of social media is to craft a carefully-worded social media policy. The policy should never prohibit use of social media to engage in concerted activity regarding terms and conditions of employment. The policy must also take care to be sufficiently concrete and narrow so that there is no doubt that concerted activity is not covered. For example, if you want to prohibit the dissemination of confidential information, a valid and indeed practical restriction, explain what you mean by confidential information, and do not include terms and conditions of employment. If you want to limit who can speak on behalf of the employer to the media, that is wholly acceptable and indeed a good practice. But again, do not instruct employees that they cannot speak to any member of the media regarding their personal terms and conditions and employment. Finally, take care not to reach too far. Do not attempt to regulate private conduct and statements which in no way bear on the employer.
The second step is to follow up and enforce the policy. If an employee is posting inappropriate material through social media, such as private or confidential information or profane or harassing statements about supervisors or other employees, take action. You do not want to open yourself up to an argument that employees had no reasonable expectation of adverse action because you as the employer let too many violations go in the past. Furthermore, if an employee is targeting another employee with harassing or profane communications, and you as the employer take no action, you could be opening your business up to potential liability. Take all reports of inappropriate social media use seriously and follow up.
Please note, however, that your investigation should involve only publicly-available information. It should go without saying, but do not break into an employees’ Facebook or Twitter account if you have not been granted access. Such access could potentially violate the Federal Stored Communications Act, 18 U.S.C. § 2510 et seq. if the employer is not accessing information stored on its own server. The Stored Communications Act imposes both civil and criminal liability, and has been held to apply to an employer’s act of gaining unauthorized access to an employee’s private social media group, a group maintained on a third-party server. You can investigate stored on your own server, but keep investigations of information maintained on third-party servers to that which is publicly-available.
But even though social media can appear dangerous, and employers must treat employee social media use with caution, don’t underestimate the good that can come from social media. Social media can be a wonderful tool for recruiting and for vetting potential hires. Smart use of social media can also build goodwill and camaraderie between employer and employees and among employees.
Don’t fear social media. It’s here to stay, and it can be good for the employer-employee relations. Just be sure to craft a sound, focused, detailed social media policy, and follow up on any reports of inappropriate social media use by employees using above-board, legal methods.