Social media is now a major force of communication that has permeated the workplace and introduced new risks for employers. While social media has a valuable role in communications, marketing and branding, it is also wrought with potential pitfalls in areas ranging from breaches of laws and regulations, harassment, discrimination, cyber-bullying, defamation, leaking of intellectual property and other lawsuit-ripe activities. Therefore, it is imperative that every company regardless of its size, employee base, industry or market territory create social media policies.
Companies must make an informed decision about whether they wish to embrace social media or ban it from the workplace. If they choose to embrace it there are many issues which need to be addressed in their policies. Some of these include the fact all of the company’s policies apply when an employee is utilizing social media, most notably anti-harassment, discrimination, trade secrets and confidentiality. That being said, the most fluid area in the law right now regarding social media in the workplace has to do with the National Labor Relations Act (“NLRA”) and the National Labor Relations Board’s (“NLRB”) application of the NLRA to employer policies and employee discipline. Most employers are unaware that the NLRA pertains to all workplaces whether or not they are unionized. The NLRA confers rights on employees to engage in protected, concerted activity. What this means is that employees have a right to engage in discussions with each other about their terms and conditions of employment, whether or not a union is involved. The NLRB has taken a rather broad view of the NLRA in situations where employers have disciplined or terminated employees for discussing the workplace and/or management in social media, and has issued complaints against both unionized and non-unionized employers for doing so. As such, every social media policy must have a caveat instructing the employees in sum or substance that nothing in the policy should be construed as to prevent them from discussing their terms and conditions of employment in violation of the NLRA.
Another area which must be addressed in any social media policy is the Federal Trade Commission’s (“FTC”) requirements pertaining to communications about a company’s products/services. Specifically, the FTC requires that any material connection between a person endorsing a product and the company selling the product must be fully disclosed. A “material connection” is defined as a relationship that might materially affect the weight or credibility of the endorsement which would include an employment relationship. The FTC also requires that endorsements must reflect the honest experience or opinion of the endorser, and may not contain representations that would be deceptive, or could not be substantiated, if the advertiser made them directly.” So, employers would be wise to either prohibit employees from commenting on the employer’s products or services in social media, or require employees to disclose the employment relationship in the same posting. All employees should be required to report to management violations of this policy because the company can be held liable for violating the FTC guidelines whether or not they knew about the endorsement.
Managers and supervisors can unwittingly expose the company to risk in social media, not only with regard to the above. For instance, when managers “endorse” a current or former employee on Linked In© they are most definitely violating the company’s policy to disclose only position, dates of employment and compensation in employee references. Similarly, managers and supervisors should never “friend” an employee on Facebook© because they then may be privy to otherwise lawful off-duty conduct which they should not know about in their work relationships (e.g, drinking heavily, political organizational meetings, sexual orientation, etc.) And, besides anti-discrimination statutes coming into play, more than half of the states have laws prohibiting an employer from taking action against an employee for lawful off-duty conduct.
There are other issues with regard to social media usage in the workplace, such as whether to use it for recruiting, etc. which are too numerous to delve into in this short article. Right now it is a best practice for companies to have a policy at least with regard to employees’ usage of social media. And, because the law in this arena is having a hard time keeping up with the changes in technology, it is best to consult with an employment attorney or experienced HR consultant in writing the policy and at regular intervals to make sure the policies and practices are up to date.
There are still many legal challenges ahead for employers relating to social media in the workplace. Incorporating a social media policy in the employee handbook is one step toward avoiding potential lawsuits. Training the employees on the policy is also a good idea. For a more comprehensive discussion of social media in the workplace, view Alcott’s pre-recorded webinar “HR Hurdles Webinar on: Social Media and the Workplace” .