With the ever-growing popularity of social media sites like Facebook, Twitter, and Google+, companies have been forced to struggle with a difficult issue: where to draw the line between online behavior by employees that reflects badly on the company—and therefore may require a company response—and protected speech. At the heart of this conundrum lies the uncomfortable truth that social media compliance is to a large degree uncharted waters for both employers and the courts.
That being said, the two seem to be headed in different directions over the issue. Consider recent polling data reported by TNW that reveals 44% of companies track their employees’ social media usage both inside and outside of work. Employers’ concerns seem justified since social media is essentially this century’s rumor mill on steroids. Never before have private individuals had the power to spread a message so quickly to so many. Little surprise then that many organizations are proactively monitoring the social media activity of their employees for fear that negative comments will be publicized and damage their companies’ reputations. What’s more, as TNW reported, 71% of companies outright block social media activity by employees at work.
Employers must ask themselves, however, if they are overreaching. How far is too far? U.S. courts, led by the National Labor Relations Board (NLRB), are carving out a definite zone of protection for employees to speak their minds on their own time using social media without having to fear disciplinary action – or retaliation – from their employers. First, as reported by Mobiledia, a complaint filed with the NLRB by Dawnmarie Souza against her former employer American Medical Response of Connecticut was settled in February of this year with America Medical Response agreeing to a private settlement with Souza and a change to its social media policies. Souza alleged she was unfairly terminated after complaining on Facebook that her supervisor had denied her union representation. The NLRB ruled that Souza’s Facebook statements were protected under the National Labor Relations Act and her subsequent termination was therefore illegal.
Furthermore, as reported by Forbes, the NLRB ruled this September in favor of five employees terminated by the non-profit Hispanics United of Buffalo after one of the employees complained on Facebook about a co-worker and the other employees jumped into the ensuing social media gripe session. The NLRB ruled the five employees should be reinstated to their former positions and awarded back pay. While Hispanics United of Buffalo insisted the employees were terminated for violating an agency policy against online harassment, the judge in the case ruled that the employees had a right to freely discuss working conditions. Significantly, this was the first social media ruling involving a non-union workplace.
(Click here for additional information on recent NLRB social media rulings.)
The precedent now seems clear and all employers should take notice. While companies may be justified in monitoring the social media activity of employees in the interest of protecting organizational reputation, taking action based on observed online behavior is a very different matter. The NLRB has made it apparent that employees, both union and non-union, have the right to voice workplace concerns using social media networks on their own time. Social media policies that prohibit such speech do not enjoy the support of the law. In other words, there is not adequate justification to take action against an employee simply because something he said on Facebook violates a company policy against discussing the company on Facebook. In order to avoid having such actions overturned, it appears the company must identify an underlying violation by the employee that falls outside of what the courts have ruled as protected speech.
The line in this case clearly favors the employee, and organizations should be very wary about the potential cost of crossing over it. The key therefore for employers is never to reach the line in the first place. Organizations should incorporate social media policies into their Codes of Conduct that are reasonable, afford protection to both the company and its employees, and don’t overstep the boundaries established by the courts. Furthermore, organizations should conduct comprehensive employee training on their social media policies to ensure everyone is aware of their responsibilities and expectations of behavior. As Benjamin Franklin famously opined, an ounce of prevention is worth a pound of cure—and it’s never been truer than in the age of social media.
Submitted by guest blogger Jon Strother, Senior Copywriter and Editor at Global Compliance. Global Compliance provides ethics and compliance solutions, including online sexual harassment training and education programs.
