A well-respected management-side firm (and sometimes opposing counsel of mine, I should add), Proskauer, released a study they did on social media this week, and I found it quite disturbing from the employee-side point of view. Their key finding:
While nearly 90 percent of companies use social media for business purposes and almost half allow employees to use social media for non-business activities, more than 70 percent of employers report having to take disciplinary action against employees for misuse (a significant uptick from 35 percent in 2012).
While the management-side firm took the results of this study to mean that employers need to crack down more on employee social media use, I had a different reaction, which was:
Holy cow! Seventy percent of employers not only monitor employee social media but are disciplining employees for expressing incorrect views.
I have to ask, what the hell are we coming to when employers think they have the right to monitor and control employees' opinions expressed on their own time in their own blogs, Facebook pages or other social media. What kinds of things are employers monitoring and cracking down on? Here's what Proskauer says:
Wait, what? Misrepresenting the views of the business? Disparaging remarks about the business or employees? Wow. The nerve of employees having views different from those of their employers or disparaging an abusive boss. Fortunately, employees who are being subjected to this Big Employer behavior have the NLRB in their court. NLRB protects most non-supervisory non-government employees from many overbroad social media policys. Some of their recent crackdowns include: Tossing a disclaimer requirement: Kroger had the brilliant idea of requiring employees to post a disclaimer whenever their posts related to work. "The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores." The NLRB judge tossed the disclaimer requirement with this comment:
An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would neve r— ever — withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech.
Tossing an anti-negativity policy: Hills and Dales General Hospital decided all employees must be happy, or at least not express unhappiness. A NLRB judge tossed policies with this language: “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other,” “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity,” and“We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.” They stopped short of, "You will be assimilated." Making an employer rescind policy against discussing executives, customers, suppliers: Valero had to toss its social media policy to satisfy the NLRB. The offending policy about discussing executives, et al. was this:
Policy 1: Protecting the confidential information of our employees, customers, partners and suppliers is also important. Do not mention them, including Valero executives, in social media without their permission, and make sure you don't disclose items such as sensitive personal information of others or details related to Valero's business with its customers.
Making an employer rescind policy against abusive, embarrassing posts: Valero also had to toss this policy:
Policy 2: Do not post anything that is false, misleading, obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful or embarassing to another person or entity. Make sure to respect others' privacy.
If you think your employer's social media policy is over the top, or if you're being disciplined for social media use, contact the NLRB or talk to an employment lawyer in your state about your rights. For more on employer invasion of social media privacy, check out my articles Can Your Employer Demand Your Social Media Passwords and Ten New (And Legal) Ways Your Employer Is Spying On You.
See more employment law posts on Donna Ballman's blog, Screw You Guys, I'm Going Home.
For more information about LexisNexis products and solutions, please connect with us through our corporate site.