AT GSW we are all for Employee contribution in social networking. We are also all for companies creating guidelines to keep the employee contribution consistent with the company brand.
When we look at helping a company create social media guidelines for their staff, we use the less is more approach, and it looks like that may be the only approach.
This week a landmark case in Connecticut is demonstrating that worker rights extend to Facebook. From the New York Times article Company Accused of Firing Over Facebook by Steven Greenhouse
The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.
Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
That act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves.
Two areas seem to be highlighted in this case, an employees right to commiserate with fellow employees and the companies right to prohibit employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers” in general. Though it seems reasonable to be able to limit an employee from publicly airing company “dirty laundry”, it may not be. Facebook is relatively new but the internet has been around for just over four decades now and airing grievances is nothing new.
From the California Labor & Employee Law Blog Social Networking as Protected Concerted Activity?
In 2002, the Ninth Circuit weighed in on this issue, albeit in a much narrower context and before the advent of Facebook. In Konop v. Airlines, Inc., the plaintiff was an airline pilot who maintained a private website that he used to publish disparaging remarks about his union’s possible concessions at the bargaining table. Though the site was invite-only, the employer gained access by using the log-in information of an employee who had been granted access by the plaintiff. The employer responded by placing the plaintiff on medical suspension. The plaintiff brought suit, alleging that the employer retaliated against him by suspending him in violation of the Wiretap Act, Stored Communications Act, and the Railway Labor Act.
Ultimately, the Court allowed the Railway Labor Act claim to move forward, finding that a triable issue of fact existed as to whether the “development and maintenance of his website constituted protected activity under the RLA.” This was a signal sent down by the 9th Circuit to inform employers that retaliatory actions against employees who make disparaging comments about their employer on the internet may be frowned upon.
Neither of these cases implies that the employer has no rights. Employers in most circumstances, are allowed to prohibit their employees from blogging and accessing social networking sites while on company time and/or via the employer’s digital devices. Employers may also legally take adverse action against an employee who accesses prohibited websites during working hours, as long as the employer is not acting contrary to anti-discrimination or retaliation laws.
So how do you protect the company and meet the needs and rights of your employees?
- Communicate – Discuss company initiatives and goals with your employees. Get feedback from your employees on how they would like to use new media tools to help you reach those goals.
- Educate – Help your employees keep their private lives private by instructing them on how to use social networking sites in a safe and private manner.
- Be Prepared – When drafting a company social media policy you should work with a digital marketing consultant [they’ll know which sites are out there and how they are being used], your human resource department, and/or an experienced labor and employment law attorney.
- Be Fair – The company’s brand, reputation, and initiatives are important but so is the right of an employee to have a life outside of work. If you try to control people they will rebel and though they may not be hurting the company they will not be helping the company either.
- Be Understanding – Mistakes will be made, this is new technology that is far from easy to keep up with and so there will be missteps. Your social networking/internet policy should not be an all or nothing endeavor it should be malleable.
