April 30, 2017

Disciplining Employees for Unapproved Posts

It has become commonplace for companies and employees to use social media to build their businesses and interact with customers.  In fact, more than 500 million people are now using Facebook® and over 175 million are using Twitter(R).  Even if businesses do not have an official social media page, their employees or at least some of them probably maintain their own personal pages.  This may create legal and business risks for companies, especially for those which do not fully understand the use of social media.  Indeed, if such use is not given careful consideration, it can damage and destroy goodwill with partners, investors, and consumers almost overnight.

Social networking’s expansive reach, and its impact on personal and professional communication, has put the traditional notions of privacy and free speech to the test.  Employees routinely post both personal and work-related content for their own purposes and without company consent, which can not only have negative implications for the employee, but the business as well.  For example, if an employee of a cell phone provider posts pictures of the newest 4G phone before it has been released to the public, there is a real risk that such a post can cause fiscal and legal damage to the company.  It has been widely assumed that such posting could be grounds for termination, but a recent case suggests that the answer may not be so black and white.

A complaint issued by the National Labor Relations Board (NLRB)’s Hartford regional office on October 10, 2010 alleges that an ambulance service illegally terminated an employee after that employee posted negative comments about his boss on Facebook ®.  The complaint goes on to allege that the company maintained and enforced an ‘overly broad’ blogging and internet posting policy.  An NLRB investigation found that the employee’s postings constituted protected “concerted activity” of which an employer cannot interfere.

‘Protected concerted activity’ arises when, with respect to working conditions or other matters that are of interest to them, employees generally speak about work issues.   While there are certainly limits to the freedom that employees have to post information about their employers, the outcome of this case could impact how some social media policies are written and enforced going forward, even in non-union companies.

The complaint filed in Hartford is contrary to the decision reached by the NLRB involving a challenge to Sears®’ social media policy.  In that case, the Board denied a claim by a union that a portion of Sears® policy restricted the rights guaranteed under the National Labor Relations Act, which essentially protects an employee’s right to self-organize or form a union.   The NLRB found that Sears’® policy was sufficient for “a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about grievances, on-the-job protests, picketing and strikes.

The uncertainty surrounding what can and should be included in a social media policy does not always mean that a company should not have one, but rather highlights that these policies must constantly be reviewed and updated to reflect  the ever-changing technical and legal landscape.  In addition, banning social media use by employees is not likely to be effective because employees will undoubtedly continue to use it on their own time for personal use. Having a policy is critical both  for companies to avoid the risks associated with the use of Web 2.0 platforms and take advantage of the opportunities to remain competitive.  While it is essential for a policy to be tailor made to reflect the needs and requirements of an individual company and be directed to the protection of the employer’s business, professional reputation and client obligations, a review of policies finds that many of them cover similar topics:

  1. Scope – Employees must understand that they are not necessarily protected by the first amendment and they will face discipline (including termination) for any postings that are injurious to or unapproved by the business.
  2. Affiliation – The policy must make it clear that employees are not permitted to speak on behalf of the company unless authorized to do so.  Thus, postings by employees that are not clearly personal in nature should include a disclaimer that the employee is not expressing the company’s position.
  3. Confidentiality/Use of Intellectual Property – The policy must remind employees of their confidentiality obligations and prohibition against unauthorized use of a company’s intellectual property.  Companies should also use this opportunity to review their policies concerning the handling of intellectual property and confidential information and take steps to better protect such information.
  4. Marketing – The policy should contain clear guidelines on the use of endorsements and testimonials by third parties.  Not only is such transparency required by the Federal Trade Commission but a number of companies have gotten into trouble by failing to disclose that they were responsible for the on-line endorsements.  In other words, the testimonials should come from a legitimate third-party not simply from a friendly co-worker.
  5. Non-disparagement Language – Despite the NLRB complaint discussed above, companies (especially non-union ones), should consider including language requiring that employees not disparage their own company or anything related to the company.

Other issues that a company should consider when crafting its social media policy include required separation of personal and professional accounts and guidelines for social media PR crisis response.  By adopting a comprehensive social media policy that includes the elements set forth above, a company can simultaneously reduce the risks and increase business opportunities, visibility, and engagement that can be created through the use of social media.

IF YOU WISH ADDITIONAL INFORMATION ABOUT SOCIAL MEDIA POLICIES, YOU SHOULD CONTACT PETER TOREN AT PTOREN@WMCLAW.COM.  HE HAS BEEN INVOLVED WITH DRAFTING SOCIAL MEDIA POLICIES FOR A NUMBER OF COMPANIES.