One of my clients recently sent me an e-mail. They stated that some employees are posting things on Facebook that they don’t find appropriate and wanted a policy in regards to that subject.
A policy of that nature is trickier than one might think. Employers can have policies about how employees use the company’s information and communication systems (computers and internet) during their working hours. In most cases, employees are prohibited from using the company’s information and communications systems in any way that may be deemed illegal, fraudulent, embarrassing, intimidating, disruptive, or offensive to others, which includes, but is not limited to, the transmission of sexually explicit messages, cartoons, ethnic or racial slurs, gender-specific comments, or any other comment or message that offensively addresses someone’s age, sexual orientation, religious or political beliefs, national origin, disability, veteran’s status, or anything else that may be construed as harassing, discriminating, or disparaging to or of others.
However, employers, for the most part, cannot discipline employees for job-related statements that are written and posted off-duty and on their personal computers. In fact, the Federal National Labor Relations Board (NLRB) protects employees who engage in “concerted activity” to increase their pay, resolve workplace problems, or improve working conditions. They are protected whether or not they belong to a union. An activity is considered concerted only if more than one employee’s concerns are involved. If you have an employee who posts on Facebook that her employer is mean because she got a poor performance review, she is not engaged in “concerted activity.” But if she complains, on Facebook, Twitter, etc., that she, along with several other co-workers, received poor reviews because they all made complaints about safety issues, she is engaged in “concerted activity” and is protected against employer retaliation. On the other hand, she is not protected if she exposes company trade secrets or makes threats of violence against management. In those cases, she can be terminated.
As more and more social media cases come before the courts, there will be clearer definitions about what kind of protections can be applied to on-line posts and comments. There are currently a number of examples on the NLRB’s protected concerted activity page, http://nlrb.gov/concerted-activity
As a general rule, employees are often protected if they are discussing the company’s practices they think are unfair or issues they plan to bring to management’s attention.
A social media policy can be added to your computer, e-mail, or internet policy. It can simply state the following: “You are responsible for what you post in any social media. Keep in mind that your posts cannot be viewed as malicious or threatening, and cannot disparage customers, associates, or suppliers. Your posts cannot contribute to a hostile work environment on the basis of race, sex, disability, or any other legally-protected characteristic. Postings that include discriminatory remarks, harassment, and threats of violence against co-workers will not be tolerated and may subject you to disciplinary action, up to and including termination.”
