THE IMPACT OF SOCIAL MEDIA USE IN THE WORKPLACE: PART II

By Robert E. Fravel Jr., Esq.

 

As I pointed out in Part one, person social media use is quickly becoming a daily occurrence in today’s workplace.  According to the SilkRoad survey: Social Media and the Workplace 2012, 75% of employees access social media while at work.  Given all the technology available in today’s society, I would not be surprised if that number is closer to 80% in 2015.  Social media use at work diminishes an employee’s productivity, thus costing the employer money.  So how can an employer combat social media distractions?  Companies need to establish and enforce policies on personal internet and social media use!  But there is a catch when it comes to implementing an internet and social media policy…

Over the last five years or so, our country has seen an increasing amount of litigation surrounding social media firings and/or the guidelines imposed by a company’s internet/social media policy.  An employee who is fired pursuant to an over-restrictive internet/social media policy will be successful in an unfair labor practices charge against his or her employer.  The relevant question then become “how restrictive can an employer’s internet/social media policy be?”

The National Labor Relation Board (NLRB) has maintained that employers may not adopt any policy that effectively “chills” the activities protected by Section 7 of the National Labor Relations Act (self-organization, forming, joining, or assisting labor organizations, collective bargaining, engaging in other concerted activities for the purpose of collective bargaining or other mutual aid or protection).  According to the NLRB, the majority of social media policies are overly broad and thus unlawful due to their restrictive nature.  The NLRB has now made a point to start cracking down on overly broad social media policies.  So how can an employer develop a social media policy that is permissible under the NLRA?  Fortunately, a recent report from the NLRB’s acting General Counsel provided some clarity on this issue.  In order for a social media policy to be acceptable, it must contain (at the minimum) the following:

1. A clear and concise statement expressing why the employer needs a social media policy;
2. A provision explaining to employees that while they are allowed to express their personal opinions on social media, they may be later held responsible for those expressions;
3. A detailed explanation of information that an employee may not disclose on social media (such as confidential information, trade secrets);
4. Explanation and examples of communications that are prohibited under the employer’s anti-discrimination/harassment policies; and most importantly
5. A statement that the employer will in no way employ this social media policy in a way that limit the employee’s ability to use social media to participate in the protected activities set forth in Section 7 of the NLRA.

Aside from following these guidelines, the single most important thing for an employer to do when drafting a social media policy, is to consult with legal counsel (whether that be a company General Counsel or outside counsel).  The law continues to change on this front as more cases are decided, the best way to stay up to date with these new decisions is to consult a lawyer.

Robert E. Fravel Jr. is a Pennsylvania attorney at Timby Hunt law firm in Doylestown, Bucks County. If you would like to further consult with Mr. Fravel send him an email at ref@timbyhunt.com or call him at (215) 230-7626.