Facebook in the Workplace

Posted on January 19, 2012 in Compliance, Consulting, Employment Litigation

Facebook turns 8 on February 4, 2012.  In that relatively short period of time, social media has dramatically changed the workplace.   The long-term implications are only beginning to surface.  This newsletter discusses five critical issues employers should consider as we all confront social media in the workplace.

Adopt a Social Media Policy

All employers should have a social media policy.  Employers with a heightened sensitivity to social media should consider having applicants sign-off on their social media policy as a prerequisite for seeking employment.  Also, because it is such a hot button topic, a social media policy might be best addressed in a separate policy acknowledged in writing by all employees, as well as included in the employee handbook.  While most provisions in an employee handbook can be standard from employer to employer (see my newsletter of January 5, 2011), a social media policy should be tailored for the business or for certain job positions which necessarily require use of social media (e.g., a recruiter).

Encourage Good, Cautious Posting Habits

Think before you speak is a cliché applicable to all forms of communication, but somehow lost in social media.  The convenience and speed of Facebook and Twitter fosters candid, sometimes unfortunate statements that are challenging to retract.  These social forums move rapidly.  They command immediate reactions to circumstances that all too often require measured deliberation.  People abridge words and invent acronyms that seem to go viral in nano seconds to reduce the cost of texting and tweets.  A good social media policy coaches employees to be cautious and slow when posting information. 

Protecting the Company’s Goodwill

Employers are justly concerned about what their employees post.  Employers should explain in their social media policies that employees are prohibited from associating their personal views with the views of their employer.  Even with such a policy, employee statements in social media might reflect poorly on the organization or create controversy in the workplace.  When an employee takes a public stance on a divisive subject (e.g., abortion, “don’t ask don’t tell,” or same-sex marriage), the employee creates the risk of offending co-workers and customers with strong differing views.

The Company might also be held accountable for employee conduct that appears to be endorsed by the Company.  The Federal Trade Commission issued guidelines for testimonial advertising that encompasses social media.  These can be found at http://www.ftc.gov/opa/2009/10/endortest.shtm.   

Incorporating Social Media in Other Policies  

Social media allows bad actors a new forum for poor choices.  Cyber bullying stands out as a particularly troubling example.  Employers should state in their social media policies that harassment and discrimination is prohibited in all forms and forums, including social media.

Likewise, employees should be reminded in the Employee Handbook that they have no expectation of privacy in social media that is used on company computers or property. 

The National Labor Relations Act (the “NLRA”)

On August 18, 2011, the Office of the General Counsel of the National Labor Relations Board (which enforces the NLRA) published a report “Concerning Social Media Cases.”  The report explains recent NLRB decisions regarding Facebook postings as protected “concerted activity.”   (Click for redirection to report)  Concerted activity is an action by an employee “with or on the authority of other employees, and not solely by and on behalf of the employee himself,” which cannot be the basis for an employer’s action against the employee.  For example, an employer generally cannot discipline employees for discussing staffing levels, criticizing job performance, or expressing concerns regarding workload or employer policies.  Facebook (and other social media) is an acceptable and protected means for employees to engage in concerted activity according to NLRB decisions.

The NLRB also provides some limited examples of what employers may not include in their social media policies.  With assistance from legal counsel, employers should examine and incorporate the most recent NLRB guidance into their social media policies.

I value your thoughts on this evolving and facsinating topic of social media in the workplace.  Should employers monitor employee use of Facebook?  Should Facebook be banned at work?  What benefit does your business derive from social media?   Communicate your opinions, concerns, and questions.

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