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Is your Social Media Policy totally Legal?

January 28, 2013

social connectionsIn a global bestseller named ‘Secret’, Rhonda Byrne discussed how the law of attraction makes it possible for a person’s thoughts and feelings to influence the events in their life. Something similar happened to Amy when, in a despondent mood, she wished she got fired – as she would much rather stay at home and have it easier. She got fired the very next day! That was because Amy made the wish – not in secret – but on a statement she posted on her Facebook account. People have also lost jobs over their posts which displayed racial prejudices, caustic sarcasm, dark humor and for slamming their workplaces and/or bosses. Which is one reason why, we find cautions posted everywhere, ad nauseam, on how not to let social media ruin one’s career.

Legally, employees are not prohibited from voicing complaints about their working conditions, even on social media –depending on the content of the post. . If an employee is overworked, cheated out of a bonus or something similar –the employee could air the matter on social media to attract the attention of other employees – who join the conversation. The employee may not be forbidden from doing so; even if the other employees are former co-workers, the post may be protected from adverse action from the employer.

When formulating social media policies, companies must be familiar with the guidance provided by the National Labor Relations Board (NLRB).

A recent review by the NLRB of cases where employees were discharged for comments posted online uncovered these illegal components.  The takeaways?  Be specific:

  • Companies cannot implement social media policies that contain broad, sweeping prohibitions of any disparaging comments about the company.
  • A social media policy also cannot prevent employees from discussing wages or work conditions with other employees, as a group activity, for mutual aid and protection.
  • Employers may also not prevent any discussions about future employment plans and actions, such as potential reductions in force, hiring freezes, or furlough days. The dismissal of an employee who used foul language on Facebook against her employer for transferring her to a lower paying division, in spite of being a high performer – was held illegal as she received sympathetic responses from co-workers and past employees, one of which suggested a class action suit.

So how does an employer establish a social media policy that can be legally enforced?

  • Recognize that your social media policy should be a natural extension of your overall code of business standards (COBS). Make all employees sign the COBS at time of hire, and include clear statements of actions to be taken for violations.  Have all employees review and re-sign annually.
  • Be clear as to information is company confidential and not for public disclosure.
  • Keep it in-house.  Provide clear channels within the company for employees to express concerns, address grievances, make suggestions and discuss issues with other employees.
  • When informing workers of your policies, remember to include all of your workforce.  Go beyond regular W-2 employees to include agency contractors, independent contractors and consultants, and service providers providing project services.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.

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