July 1, 2014
by M. Robin Repass
With the popularity of social media as a source of communication in today’s workplace, it is essential to construct sound policies to balance an employer’s rights to protect business assets versus an employee’s right to discuss workplace concerns. This is particularly true in safety-sensitive work environments, where the airing of safety issues on social media could trigger the attention of any number of federal agencies, including the Mine Safety and Health Administration (MSHA), the Occupational Safety and Health Administration (OSHA), and the National Labor Relations Board (NLRB). Care should be taken in drafting acceptable use policies concerning online posting and Internet usage in keeping with the rapidly evolving law in this area.
Screening applicants and employees through social media
The Internet has become an important tool for screening job applicants. In order to prevent the hiring manager from viewing potentially unlawful categories of information, the best practices recommendation is that the task of reviewing social media should be delegated to a non-hiring individual, with instructions to view and report only on defined categories of information which are related to the business necessities of the position at issue.
Viewing a candidate’s Facebook page will likely provide the hiring manager with information on the applicant’s race, religion, gender, sexual preference, age, nationality, marital status or disability. If these topics are off limits during an employment interview, privacy advocates argue that employers should, likewise, be prohibited from using social networking applications as pre-screening tools to discover otherwise off-limit information. The hiring manager should be shielded from off-limit information, and provided a report only on information with a direct bearing on the applicant’s ability to perform the position at issue.
Caution should also be used when screening the social media accounts of current employees. Frequently, supervisors are given information by an employee that his or her co-worker has posted negative statements about the company or its practices online. Before deciding whether discipline is necessary, it is important to first view the statement in the context of whether it constitutes a form of protected (i.e. whistleblower) activity. For example, the Federal Mine Safety and Health Act of 1977 (Mine Act) in § 105(c) prohibits discharge or discrimination against any miner or applicant for employment who makes a complaint of an alleged danger or safety or health violation. A Facebook posting referencing workplace safety and health issues could very well be viewed by MSHA as constituting a viable complaint under § 105(c).
Restricting employer’s access to social media passwords
Numerous states have now passed legislation protecting an employee’s social media passwords. These laws prohibit employers from asking employees and applicants to disclose their login details, demanding changes in employees’ privacy settings, or requiring employees to add other employees as friends or contacts. Employers are also prohibited from discharging employees or refusing to hire applicants who exercise their social media privacy rights under this law.
NLRB’s reaction to overbroad social networking policies
Employers should be cautious of potential issues regarding “concerted activity” under the National Labor Relations Act (NLRA). Under the NLRA, employees may confer with one another about their wages and other terms and conditions of employment. Employees may also take “concerted” action in an effort to improve their working conditions. Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union.
Employees are relying on Section 7 to challenge company social media policies. According to recent decisions by the NLRB, employers should avoid policies that place unnecessary restrictions regarding what employees may post on social networking websites. NLRB Acting General Counsel Lafe Solomon issued a report summarizing conduct that the NLRB has viewed as constituting protected activity, even though it took place online:
• Conversations among co-workers regarding job performance and staffing levels that implicated working conditions;
• Discussing supervisory actions with co-workers;
• Posting photos and comments reflective of co-workers’ concerns regarding terms and conditions of employment; and
• Shared concerns about terms and conditions of employment.
The NLRB has, however, noted that individual employee gripes are not protected activity. Likewise, social media policies have been upheld as lawful where they are aimed at preventing inappropriate postings, such as discriminatory remarks and threats of violence.
Implementing a social media policy
A reasonable social media policy should contain the following minimum components.
• Remind employees that they are not to divulge private company or vendor information, trade secrets, or other confidential or proprietary information. Provide examples of policy violations.
• Inform employees that discriminatory statements or sexual innuendo about co-workers, customers, or vendors will not be tolerated and will subject the employee to discipline.
• State that employees may be held accountable for the content they post on the Internet, whether the posting is done at work, at home, or on the employee’s own time. This is particularly true if the employee posts or shares something that violates company policies.
• Discuss the consequences and potential disciplinary ramifications for violations of the social media rules.
• Require signed employee acknowledgement for receipt of the social media policies.
The key practice-pointer from the evolving law on electronic communication is that employers should create well-defined written policies explaining when and how electronic communication may be used by employees. Employers should also narrowly focus their electronic monitoring policies to legitimate business interests, such as avoiding the distribution of inappropriate and/or sexually offensive e-mail content. In creating such policies, employees should also retain caution against becoming too overzealous in their approach to monitoring employees and pre-screening employees such that the employer’s usage of social networking websites infringes on the employee’s NLRA Section 7 concerted activity rights. Employers should also stay abreast of the latest developments in social media as new issues are emerging frequently in this rapidly evolving area of law.
M. Robin Repass practices in the Labor and Employment Practice Group of Jackson Kelly PLLC’s Denver office. She can be reached at 303-390-0024 or via email at firstname.lastname@example.org.