March 22, 2015

The use of social networking sites like Facebook, MySpace, Twitter, LinkedIn, and others has been nothing short of a connectivity tsunami. In the relatively short space of five years, social media’s tentacles have touched virtually every aspect of our lives. The workplace is no exception. In an effort to protect trade secrets, corporate image and even the reputations of executives, employers have resorted to restrictive policies prohibiting or limiting what employees can publish on social media sites. It is not surprising then that unions and government regulators have sought to protect employees from employers who terminate or discipline employees who either unknowingly or intentionally violate such policies. The now infamous “Facebook Firing” shows how successful they’ve been.

It was hoped that a recent Connecticut NLRB case, American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (Region 34, NLRB), would give the Board an opportunity to illuminate the murky waters of social media policy by reconciling employers’ legitimate need to manage their corporate image with the employees’ right to engage in social media activities outside of the workplace and on non-work time. Such was not the case, however.

American’s policy included restrictions prohibiting employees “from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance…” and “from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”

The employee was terminated for multiple serious infractions of company policy including posting vulgar and insulting language about her supervisor on her Facebook page. She was also alleged to have been denied the right to union representation. The NLRB asserted that American’s policy was overly broad and infringed upon employees’ rights to communicate about terms and conditions of employment under Section 7 of the National Labor Relations Act (NLRA)*. They also asserted a violation of an unfair labor practice prohibition in denying the employee union representation.

Regrettably, or perhaps happily for the parties, the case settled on the eve of being heard. American agreed “to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours, and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.” Resolving the unfair labor practice charge, the company promised not to deny union representation in the future. The allegations regarding wrongful discharge were settled in a private agreement with the employee. (No doubt involving a substantial monetary payment.)

So what are employers to glean from American’s consent order? Unfortunately, nothing of precedential value. But, what is clear is that the Board is looking at policies that prohibit or interfere with negative off-duty banter about a company and its leadership. We might not have to wait long for clarification, however, because the CSEA/SEIU in early February 2011 filed an unfair labor practice charge against a Connecticut bus company which unlike the earlier American case, contains no specific allegations that the company wrongly disciplined a specific employee. This charge asserts that the employer violated Section 8(a)(a) of the NLRA merely by maintaining a policy against “[T]he use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.” These “cleaner” facts could well provide an opportunity for more guidance about how the NLRB will evaluate social media policies in the future.

A Safe Way Forward:
First, all employers should examine closely their own internet usage policies with an eye towards ensuring that they do not violate the NLRA. Both union and non-union employers should ensure that their policies are not overly broad and that the restrictive language does not “chill” employees’ right to participate in protected activity. No longer can you safely prohibit employees from making disparaging remarks about the company or management or depicting the company in a bad light or discussing the terms and conditions of their employment. This also means you may not restrict employees from discussing wages and benefits, either by having such a policy or enforcing it.

Secondly, a properly drafted policy must define its scope to include all internet communications (this includes personal blogs, message boards, Twitter and social networking sites). Such a policy may also advise employees, if they post about the company, of their obligation to disclose that they are employees, and that employees give a disclaimer that whatever comments they make are their own and do not reflect those of their employer. Clearly, employees can be warned that disclosing confidential information or information about customers, clients or patients is prohibited and grounds for termination. Specifically, health care providers may remind employees of their obligations under HIPPA laws. Finally, you may caution employees that whatever they say online reflects not only upon them, but also upon their co-workers and ultimately the company.

A well crafted policy can both preserve employees’ NLRA and First Amendment rights and protect an employer’s public image on the Internet. If you want to minimize potential harm, have an HR professional review both the Employer Handbook and the social media policy. Contact CEDR Solutions anytime at 866-414-6056.

Contents of this blog are for general H.R. guidance and informational purposes. Content does not constitute legal advice. If you feel you need more guidance, please contact an HR expert like CEDR or legal council in your area.

*NLRA Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.