by Laura Pokrzywa
It’s no secret that the vast majority of Americans carry cell phones. According to a Pew Research poll released earlier this year, about half of those cell phone users have smart phones and more than two thirds of them regularly check their phones for messages – even when it is not ringing or vibrating.
They are not just waiting for a phone call. They are also looking for updates to their favorite social media sites, like Facebook, Twitter, Pinterest, LinkedIn and more. Americans love to stay connected – whether it’s reading other people’s status updates or posting their own! Today, most websites you visit even include links to multiple social media sites (including ours!).
In light of this upsurge in social media activity, many employers have launched a preemptive effort to minimize anti-employer rants on the internet by implementing new policies that address employee use of social media – whether on duty or off. Many of these policies have come under heavy fire from the National Labor Relations Board (NLRB) for being too restrictive or encroaching on an employees’ right to engage in “concerted activity”.
This new world of social media has many users a bit confused over public vs. private and how their First Amendment rights fit into the picture. Though the First Amendment certainly prohibits government from infringing on citizens’ freedom of speech, it does NOT prevent private employers from limiting their employees’ “public” speech. But employers must consider their policies carefully.
Despite recent court cases in which “personal” postings tripped legal snares, employers must proceed cautiously with discipline related to unflattering tweets. Much of this activity is protected by the NLRA, even if unions are not involved. In addition, if an employee is posting an allegation, it may be covered by federal, state and local non-discrimination and whistleblower laws.
So what is best? There are many steps you can take to protect yourself and your employees. First, employees need to know that they could be putting their jobs on the line if they indulge in an electronic rant over work-related issues or if they post restricted information related to the company or a customer. The only way to ensure that understanding is with a carefully written Social Media policy that is backed up by a Confidentiality and Nondisclosure Policy and clear standards of conduct and discipline. Be careful that your Social Media policy is not so broad or restrictive that it infringes on Section VII rights (established in the NLRA). Like any policy, it must also be clearly communicated and consistently enforced. Including specific examples of prohibited conduct may help define the boundaries more clearly.
Second, supervisors need to be trained to proceed with caution when dealing with social media issues. It is best to check with an HR counselor to assess whether a specific posting is protected by law.
If you have any questions regarding Social Media policies or employment laws, please contact ECRM’s Human Resource Consultants for more information.