Brought to you by the Real Law Editorial Team
Social media is as popular in the legal world as everywhere else. It is getting pulled into discovery for various cases, and new privacy laws now limit businesses’ access to their employees’ social media accounts.
Even law firms, which are typically a pretty conservative bunch, have started to change their minds about actively using social media to project themselves out into the world. But one of the stickiest, most controversial areas of social media use has been inside the workplace.
Employers are often bothered by social media because it’s public, raising worries about the risks of disclosure of corporate secrets and potential bad publicity. Initially, many employers simply banned the use of social media at work.
This was clearly counter to where society is moving: in the age of smartphones, blurred public/private profiles, and the expectation that employees be available outside regular working hours, outright bans were a nonstarter. A recent study by Cisco® even found that some younger employees found access to social media at work more important than pay.
Some organizations awkwardly tried to accept social media with conditions, such as requiring coworkers to friend each other online, or forbidding such connections completely. Many companies were confused, but they still wanted to protect themselves. They also didn’t want to get into trouble.
These companies had a right to be concerned, because into the fray stepped the National Labor Relations Board (NLRB). While it’s largely responsible for union worker relations, the National Labor Relations Act (NLRA) applies to company policies that might violate any employee’s protected rights.
Under Section 7 of the NLRA, which outlines the rights of employees under the act, communication with other colleagues and coworkers for the purpose of improving working conditions and employment terms is protected. In some cases, an employer who punishes an employee for this kind of communication, including via social media, may be in violation of the section.
So organizations looked to create social media policies to protect company information, preserve good relationships in the workplace, and prohibit things like harassment and discrimination. From the way that the NLRB had enforced Section 7, it was clear that companies needed a clear policy to be able to defend their actions. Those that had policies would more often be asked by the NLRB for amendments and improvements to those policies instead of suffering prosecution. That’s no guarantee of safety, though. The NLRB just publicly invalidated Costco’s social media policy for being “overly broad.” It’s the first ruling of this kind, but it definitely won’t be the last.
But with such a new field, and a scarcity of legal precedent, it was hard to create clear and consistent guidelines. To help companies navigate these treacherous waters, the NLRB recently released a memorandum with guidelines for dealing with social media in the workplace. The guide serves as a strong basis to help companies create—and legal counsel more easily vet—corporate policies and guidelines.
So now that the regulations have been cleared up somewhat, where does that leave companies? The rapidly growing use of social media means that more communication will take place in this very public sphere. That can mean good things, like opening new communication channels with customers. But it also means more critical comments will be made.
Leaders within the company will simply have to develop a thicker skin and address issues constructively instead of dishing out pink slips. The negative press they might receive for drastic responses or draconian measures will hurt them far more than a few Twitter responses ever would have. Instead, companies might want to find ways to address this constructively. That can mean following up directly with individuals and finding ways to resolve substantial disagreements to everyone’s satisfaction.
At the same time, employees need to stop and think. The NLRB guideline examples, as well as some recent cases, have shown that employees can use the power of social media to be stupid, insulting, or just weird. The nature of electronic conversation means that it is subject to misinterpretation. Even the head of the NLRB, Lafe Solomon, received negative attention when some of his electronic conversations were taken out of context.
It is up to each of us to self-regulate. Are you discussing work on Facebook because it’s a powerful platform to achieve lofty goals like workplace improvement? Or are you just tweeting because you’re in a bad mood and feel like complaining? Before jumping into the social media fray with a clever comment, it is important to stop and take a breath.
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