I've written before about the practical problems employers
face when trying to ban employees from accessing social media at work.
Last week, an NLRB administrative law judge provided us
another reason for employers not to implement workplace bans on social
media-such a ban might be an unlawful infringement on employees' rights to
engage in protected concerted activity.
In Dish Network [pdf], the ALJ considered the following
policy in the company's employee handbook:
Unless you are specifically authorized to do so, you may
not ... Participate in these activities [Social Media-blogs, forums, wikis,
social and professional networks] with DISH Network resources and/or on Company
The ALJ struck down the policy as an unreasonable
restraint on the right of employees to engage in protected concerted activity:
The Social Media policy is unlawful.... [T]he policy banned
employees from engaging in negative electronic discussion during "Company
time." The Board has found that equivalent rules, which ban union activities
during "Company time" are presumptively invalid because they fail to clearly
convey that solicitation can still occur during breaks and other non-working
hours at the enterprise.I've written before about the logistical problems of
workplace social media bans.
If you are going to consider banning social media in your
workplace, the practical reasons far outweigh the legal issues (Dish Network
notwithstanding). I call it the iPhone-ification of the American
workforce. If most of your employees can take their smartphones out of their
pockets to circumvent your policy, how can you possibly police workplace social
media access? Why have a policy you cannot police and enforce?
Instead of legislating an issue you cannot hope to
control, treat employees' use of social media for what it is-a performance
issue. If an employee is not performing up to standards because he or she is
spending too much time on the Internet, then address the performance problem. A
slacking employee will not become a star performer just because you limit his
or her social media access; he or she will just find another way to slack off.
When dealing with employment concerns, there are legal
issues and there are business issues. Decisions cannot be made without
considering both, and sometimes one must trump the other. In this case the
legal issue and the business issue happen to jive. The legal issue, however,
remains in flux, as the NLRB continues to grapple with the role of technology
in the 21st century workplace. The business issue, though, dictates the
employers think long and hard about implementing a policy they will struggle to
Visit the Ohio Employer's Law Blog for more
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