“Do you have a social media policy?” Not a question you would have considered a decade ago. Mercer PeoplePro Talent Management specialist, Kathleen Huggins, explains why organizations — both large and small — need to ensure that a legally compliant social media policy is in place.
National Labor Relations Act
Under Section 7 of the National Labor Relations Act (NLRA) the National Labor Relations Board (NLRB) affords employees the right to “protected concerted activity,” which includes the right to participate in activity for the purpose of self-organizing or providing mutual aid or protection.
Social media was not anticipated in 1930 at the time the NLRA went into effect and social media policies are a relatively new addition to employee handbooks. The NLRB has provided direction by 1) issuing guidance on what may and may not be included in their social media policies; and 2) which social media activity is considered “protected concerted activity” rather than a legitimate violation of employer policy that could rightfully result in discipline or termination of the employee.
Social Media Policy
It can be a challenge to draft a social media policy that balances company goals with NLRB requirements. The NLRB has taken the part of employees when it has found company policies to be overly broad. To ensure a legally compliant social media policy, keep the following in mind:
- Outline the goals of the policy
- Be specific and clear, and provide definitions for key concepts
- Provide specific examples of prohibited conduct
- Do not prohibit employees from identifying with the company
- Do not restrict more than necessary to protect confidentiality
- Advise employees of your right to monitor their social media
Employer vs. Employee Rights
One well-known case is American Medical Response of Connecticut (AMR), which terminated an employee for posting a negative comment about her supervisor on social media. In terminating her, AMR stated that her action had violated the company social media policy. The NLRB filed a complaint against AMR, which was later settled. As part of the settlement, AMR agreed to narrow the scope of its social media policy.
While the NLRB has come out in support of employees who have been terminated for posting on social media, there are a number of other situations where the NLRB has ruled in the employer’s favor when an employee has been fired. In these cases the NLRB has declined to file a claim against the employer, for two primary reasons:
- An employee discloses confidential client information via social media; and
- The posting on social media does not meet the threshold to be considered “protected concerted activity.”
Mercer PeoplePro Can Help
Do you have a social media policy? Have you reviewed it since the publication of guidance by the NLRB? Mercer PeoplePro can help you review your policies and processes. Schedule an appointment today and enjoy a free consultation, plus 2 free hours towards your first project. To set up your free consultation, visit Mercer PeoplePro — we’re standing by and ready to assist.
Written by Mercer PeoplePro Talent Management specialist, Kathleen Huggins
