Social media is providing challenges to employers who are concerned about their employees’ posts about their workplace. The immediate instinct is to ban those comments, but this quickly runs afoul of the National Labor Relations Act. The NRLA applies to even non-union workplaces and protects “concerted activity” such as forming unions and – critically – discussing terms and conditions of the workplace and the employer’s treatment of workers.
This is a new area for employment law and the rules are in flux, making it hard for an employer to write rules that would hold up in court. The National Labor Relations Board, which oversees the NRLA, has found some policies to be lawful, including this one:
harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.
But writing policies which will meet the Board’s evolving standard is tricky. Many attorneys still recommend that companies do their best to write these policies, but others, such as David Rubin of the law firm Nutter McClennen &Fish LLP, are convinced that the best policy is none and that “social networking policies may be more likely to create problems than prevent them.”
Rubin suggests that employers rely on other policies to address the underlying issues. For instance, bullying online is still bullying and can be addressed through a company’s harassment and bullying policy. Jeffrey Smith, of the law firm Garlington, Lohn & Robinson, PLLP, says,
Employers can generally treat employee social media activity that affects their workplace just like any other type of misconduct. Employers often believe they cannot discipline or otherwise monitor employee off-duty conduct. However, when off-duty conduct comes into your business, it becomes your business. For example, any type of harassment, bullying or other improper conduct affecting productivity and working conditions should be dealt with appropriately. Employers are not required to allow such conduct during work time, on work systems, or with work equipment. Nor should employers ignore this activity if it is occurring online and affecting the workplace.
So rather than focus a lot of energy on carefully crafting and maintaining social media policies, it might make sense for small businesses to rely on their existing polices until a consensus is reached about how to write appropriate policies. At least it appears to be worth discussing with a lawyer before drafting a new policy.