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Tagged with: Labor Law
Employee digital engagement is as important as other forms of engagement today because of the extensive use of internal and external digital resources. Steps in the employee engagement process include monitoring and assessing social media because social media plays a central role in communication. You never know what you will read and discover about your employees. They could be praising or criticizing your workplace, or they could be involved in union organizing. There is a delicate balance between your employees’ protected concerted rights per the National Labor Relations Act (NLRA) and your right to insist on an acceptable code of conduct. Before monitoring social media, you should consult legal counsel and develop a social media policy that describes your company’s expectations for employee social media use.
In a memo recently released by the NLRB, General Counsel Jennifer Abruzzo announced her intention to protect employees, "to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices through vigorously enforcing current law" and by urging the Board to apply settled labor-law principles in a new framework. “It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” said General Counsel Abruzzo.
Employers have struggled with writing social media policies and guidelines for many reasons. Topping the list is that it can be a treacherous path to balance
free speech rights, NLRA rights, and an employer’s reputation. The social media policy is an official code of conduct. It should be established and communicated to employees after you assess social media digital resources and their relationship to your organization.
A social media policy establishes guidelines for employees posting online or on an internal communication system to protect the company’s reputation. It addresses acceptable work and personal posting behaviors.
It sounds simple, but like most things in life today, there are numerous legal considerations in addition to corporate needs. It’s easy to write a policy that violates NLRB guidances and case decisions which means enforcement can just as easily lead to Unfair Labor Practice (ULP) charges or litigation. Consulting a labor law attorney is crucial in developing a social media policy, even if you think you understand the rules and requirements. For one thing, labor laws and technology are frequently changing. For another thing, even a few wrong words can lead to ULPs because the words can create a “chilling effect” on NLRA rights.
Besides protecting the company’s reputation and brand, the social media policy also plays an important role in developing an authentic, transparent organizational culture that helps prevent unionizing and strengthens employee engagement. One of the dangers of social media is that people forget social media is not a place where people can hide, be guaranteed of remaining anonymous or post anything they want without consequences. Even when they are outside of work, you have a right to expect employees to treat your company fairly.
Social media has become so embedded in daily life that employees may post proprietorial information, negative or false information, or inappropriate jokes without thinking twice about it. It’s too easy to jump online, post a comment, and watch it go viral. One of the more famous examples is the PR Executive waiting to board a flight to South Africa to start her vacation. She posted on Twitter, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” She was fired. Though the comment was not protected concerted activity, her position and comment sent a message that management is biased. The social media policy applies to your leaders as much as it does to staff.
Developing a social media policy is important because it establishes the rules of the road, so to speak. The policy requires your leaders to think through various good and bad scenarios, get more familiar with labor laws, and identify what is acceptable and not acceptable to your company.
A legal, well-written social media policy:
Getting legal counsel is also critical because some states have passed laws that protect employees voicing political views in their posts, whereas other states have no such laws. These kinds of legal differences make developing a social media policy more challenging, and it’s not worth the risk of ULPs or of breaking the law.
One challenge for employers is knowing when they are taking appropriate action concerning a social media post they think is wrong. There is sometimes a gap between the employer’s perspective on what constitutes poor behavior unrelated to working conditions and justifies discipline and what younger employees consider work-related. Many employees may not realize there are risks in social networking when it involves company information. They also may not realize there are positive reasons for a social media policy, like protecting staff from harassment.
What you include in the social media policy will clearly define acceptable employee behavior on social media no matter what type of platform is involved – public, public with a private account, and internal.
Various topics are included in the typical social media policy:
You don’t want to unduly restrict the right of employees to communicate with each other about their terms of employment or workplace conditions.
In May 2022, Activision employees claimed their employer Activision Blizzard violated their rights with the social media policy and threatened staff in policy enforcement. The employees of a Wisconsin studio had voted on the same day to join the Communications Workers of America. The company response was, "These allegations are false. Employees may and do talk freely about these workplace issues without retaliation, and our social media policy expressly incorporates employees' NLRA rights. Our social media policy explicitly says that it ‘does not restrict employees from engaging in the communication of information protected by law, including, for example, rights of employees in the United States protected by the National Labor Relations Act."
In June 2022, the NLRB accused the company of having a social media policy that violates employee NLRA rights by concentrating on saying the social media policy was “overbroad” because it says to “be careful not to share any confidential information.” The NLRB also said Activision had threatened employees who wanted to unionize.
Getting the language right in the social media policy is critical. Attorneys Davis Kuelthau discussed an NLRB advisory report that discusses the results of the agency’s analysis of various social media policies. Following is a sample of some statements the attorneys indicate a social media policy cannot say.
Way back in 2012, the National Labor Relations Board (NLRB) issued its first decision on a workplace social policy. The NLRB rejected Costco’s policy because it had a “chilling effect” on NLRA protected concerted rights. In the ensuing decade, more decisions were made that attempted to refine what is acceptable and unacceptable in a company’s social media policy. The result is some confusion about acceptable language, which is why it’s important to consult legal counsel before publishing a social media policy.
One of the challenges you must contend with is that the NLRB frequently changes labor law and overturns past precedents on a case-by-case basis. One of the most important points to keep in mind is that you can’t use language in a social media policy that even chills employee NLRA rights. The challenge is determining exactly what does cause a chilling effect which is why consulting legal counsel is critical.
The NLRB website says, “Using social media can be a form of protected concerted activity. You can address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media.” It sounds simple, but can employees say anything negative about their workplace and management? No, they can’t. They can’t lie or say egregiously offensive things or trash your products and services without connecting the complaints to a labor controversy. But what is a lie, egregiously offensive, or the connection between the product and labor issue?
What if your employee posts on social media that the product you are selling is faulty because a labor shortage means shortcuts were taken, placing employees at risk due to safety violations and asking employees to comment and verify it’s accurate. This is a protected concerted activity because it concerns working conditions and the recruitment of other employees in addressing the issue. It’s not just a single employee complaining. Is the product quality compromised? That’s up to the employer to set the record straight, but calling the post egregious would likely lead to a ULP.
Another issue is the use of social media by labor unions for organizing. Social media is a primary communication channel today, so your employees are using it for many reasons, one of which is to connect with labor unions. If you have an effective social listening system, you will detect the signs of union organizing activity on social media. Then you decide whether the statements employees are making online are NLRA protected.
The labor unions have directed their members to be careful about what they post on social media, indicating they understand employers don’t have to tolerate anything negative about their management, workplace, workforce, and products or services. Employers have rights, so you should always consult legal counsel when you read something you consider malicious or false.
The Communications Workers of America’s social media guidelines are an excellent example of labor union social media policies and demonstrate how vulnerable social media posting can make any employer or organization. Reading their social media guidelines also gives clues as to the type of statements you may come across during social listening since the guidelines mention all the don’ts. For example, it advises employees not to use employer-provided internet or computer access to discuss anything not directly work-related. “Employers can and often do monitor employee communications on company-owned or issued equipment,” which acknowledges that an employer will detect union organizing activity through any social media source.
Though there are commonalities among employers, each organization must develop its own social media policy because each employer has a unique communication system to meet operational and employee needs. The commonalities concern employer and employee NLRA rights. The differences are in the implemented digital communication system and the workforce structure. For example, you may give hybrid and remote employees access to company-owned mobile technology that you don’t want to be used for posting non-work related issues on any social media. The social media policy needs to address your organization’s specifics and general rules.
If your organization is ready to formalize a social media policy, IRI Consultants can bring expertise to your organization to develop a plan for connecting with employees through digital resources. The digital engagement system will become critical input for the social media policy.
Walter is IRI's Director of Digital Solutions and founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.