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HR Corner
Posted 1/8/2016
Author Carrie Cherveny
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What Unions Have to Say About Your Social Media Policies, Even If You Are Not Unionized

Carrie B. Cherveny, Esq.

New and innovative ways to share information and connect with people have created new risks and pitfalls for employers. Today, employees communicate on Facebook, Snapchat, and Instagram, (among others) and do so on their smart phone right at their desk. Employees share information virtually instantaneously. Before social media, when an employee had a bad day he or she would call a family member or friend during a break or when the employee arrived home. The employee may have spoken with a handful of friends or family members but generally speaking, the audience was small and the information was filtered by the time and space between the event and communication.

Today, employees act immediately. An employee who has a fight with his or her boss, while in the heat of the moment, could potentially sign in to Facebook and rant about the incident, the company, and/or the boss. This frantic behavior occurs every day, and social media allows the disgruntled employee an immediate platform to voice that demeanor. For example, after an argument with his boss and the subsequent termination of his employment, an employee (who was friends with both customers and coworkers) posted comments accusing the manager of stealing, tax fraud, and other questionable activities.

Oftentimes, an employer’s reaction to an employee’s unfavorable comments about the workplace and/or the company is to terminate an employee. However, terminating an employee for commenting on the terms and conditions of employment may be considered a violation of the National Labor Relations Act. The NLRA provides that employees are allowed to speak freely and openly about the terms and conditions of employment with only very specific and limited restrictions. For example:

"I don’t want a new job!"

  • Employee at a collections agency was moved to a different call group and the employee blasted her management on her Facebook page and included several co-worker comments
  • The employer fired the employee and the NLRB found that the company could not prohibit employees from “making disparaging comments about the company through any media, including online blogs, other electronic media or through the media”

"I was just being a good friend!"

  • An employer unlawfully terminated an administrative assistant who posted comments on Facebook complaining about being reprimanded for her involvement in her fellow employees’ work-related problems
  • The NLRB found that the termination violated the NRLA, because the Facebook posts concerned terms and conditions of employment and because the employee’s co-workers had participated in several of the conversations

"I wanted the promotion!"

  • Employee initiated a Facebook conversation with co-workers after she was angered by the promotion of another co-worker including comments and accusations of mismanagement and failures to provide raises or reviews
  • The employer terminated two of the employees and disciplined two others over the posts
  • The NLRB found that the employees were engaged in protected concerted activity when they posted comments on Facebook

What is an employer to do? There are some things an employer may do to limit the risks associated with an employee’s use of social media. For example, employers may issue rules or guidelines that:

  • Advise employees to “develop a healthy suspicion” cautions against being tricked into disclosing confidential information, and urges employees to “be suspicious if asked to ignore identification procedures.”
  • Prohibit discussing information related to the “safety performance of employer systems or components for vehicles” and “Secret, Confidential or Attorney-Client Privileged information.”
  • Forbid “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage”
  • Prohibit representing “any opinion or statement as the policy or view of the employer or of any individual in their capacity as an employee or otherwise on behalf of employer.”
  • Require employees to maintain the confidentiality of the employer’s trade secrets and private and confidential information is not unlawful
  • Require express authorization before an employee may post as a representative to the company

Most Importantly: because this area is wrought with legal pitfall and challenges, ALWAYS have a labor and employment attorney review any social media policy or guideline that you develop for your storage business. AlphaStaff provides human resources guidance to its client companies and is available to assist with social media policies.

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