Do you have a BYOD policy? If so, click on through to see what the NLRB’s social media policy decisions and guidance can teach you about crafting a BYOD policy to pass the NLRB’s inevitable targeting in the future.
I am a huge fan of do-it-yourself. I’ve changed the oil in my car since I turned 16. When our dining room table was too small for a family Thanksgiving and we couldn’t afford the ones we liked, I built a new table. In fact, just a few days ago, I had to grab a few tools to unclog a shower drain after a small floss container ended up there.
However, certain projects are beyond my knowledge or abilities. You won’t find me rewiring any rooms in my house. One mistake could land me in the hospital or burn down my house. In the same vein, one small mistake with regard to employees can have significant consequences.
When it comes to determining a worker’s classification, drafting employee handbooks or policies, or terminating an employee, it may seem like a good cost-saving measure to handle it on your own. After all, hiring an attorney will cost a bit of money, even if the advice only requires a few hours of your attorney’s time. And at first blush, many of these situations seem fairly simple, at least in the beginning.
Unfortunately, small mistakes during the process can lead to large problems down the road. If you classify a worker as an independent contractor, when they should be an employee, your company could face tax claims and wage claims. If the error isn’t discovered for several years, and particularly if it involves a number of workers, it could lead to a very large judgment against your company.
Similarly, if you include an unlawful provision in your employee handbook or employee policies, like forbidding employees from discussing salary information via social media, the NLRB may begin investigating your social media policies and possibly take other punitive action as well.
And last, but certainly not least, employee terminations. Pennsylvania is, after all, an at-will employment state, but federal and state law forbid terminations for certain reasons. If you terminate an employee for an unlawful reason, like violating an unlawful employee policy, you may find your company facing a lawsuit and an order from the NLRB to reinstate the employee. Or if you terminate an employee for a valid reason, but they are in a protected class or have a disability, you could be facing a long and difficult lawsuit.
In each of these three examples, a DIY approach that initially saved money will cost much, much more in the end. Lawsuits, in particular, can be expensive, even if you win.
The lesson here isn’t that you should be paranoid about making mistakes or jumping at shadows. It’s this: find a good attorney and use them. Don’t be afraid to pick up the phone or send an email asking a question. Ask for a review of the employee handbook periodically to ensure that its still in compliance with the law. Ask for guidance on terminating an employee. Ask for an interpretation of the law, particularly when you know that a new decision was released.
If you are proactive in seeking legal assistance, you’re going to have far fewer problems and much smaller legal bills.
I’ve written about technology and social media before, and how they are continually impacting your business. Social media, particularly, plays a huge role in your employees’ lives. And if you think they’re not accessing social media throughout the day, including work hours, I have a bridge in Brooklyn to sell you.
Over the last few years, the NLRB, whose rulings may cover both union and non-union workplaces, began targeting employer social media policies. Under the National Labor Relations Act, an employer may not prevent employees from discussing working conditions or engaging in protected, concerted activity and the NLRB has been applying those rules to employer social media policies. Where an employer’s social media policy directly infringes on those rights, or even if it includes vague terms or provisions without limitation, the policy may be unlawful.
The NLRB’s guidance for social media policies seems to change every day, but these are the important points to remember:
Don’t prohibit disclosure of “confidential” or “proprietary” information without specifically defining the terms. Even better, use examples.
Be careful with restricting employee’s use of your business’s name or trademark.
Don’t require employees to obtain permission before posting to social media, as it could appear that you’re trying to inhibit protected activity.
Narrowly tailor any prohibition on “offensive, demeaning, abusive or inappropriate remarks” because protected employee criticisms of labor policies or employee treatment could be prohibited.
Don’t prohibit employees from discussing legal matters or litigation, because employees must be allowed to discuss potential claims against your business.
Don’t include any language that may be read to prohibit or dissuade employees connecting on social media, because it could inhibit protected communications.
Include examples when requiring employee posts to be accurate.
Don’t prohibit employees from discussing salaries, working conditions or job satisfaction.
Unfortunately, while the NLRB’s rulings and guidance are helpful in crafting a lawful social media policy, the NLRB’s rulings may be reviewed by federal appellate courts, resulting in further changes.
In short, make sure your social media policy doesn’t affect your employees’ ability to communicate, specifically defines any terms that may have different meanings and includes examples of appropriate behavior wherever possible.
I think one area of law that is particularly confusing to employers and employees alike is that of free speech in the workplace. Almost everyone is aware that the First Amendment provides certain protections for speech. For the record, the First Amendment prohibits the government from abridging the freedom of speech. Therefore, the First Amendment does not apply to speech in a private-sector workplace. Of course, that does not mean that certain speech in the private-sector workplace is not protected, nor does it mean that a private-sector employee can anything they would like without consequence. The answer lies somewhere in between.
The National Labor Relations Act has long provided protection to employees to discuss wages, hours and working conditions. Recently the NLRB has extended that protection to discussions on social media sites like Facebook or Twitter. For example, the NLRB has found violations of the NLRA where an employee was fired for criticizing his or her boss on Facebook.
However, the NLRB’s protection does not necessarily extend to an employee posting a rant on his or her social media page, or making derogatory comments about customers on their own. The NLRB, so far, has only protected activity where two or more employees were discussing the workplace. Employee comments on social media that are mere complaints about or general dissatisfaction with the job would not be protected.
Another example of unprotected speech occurred when an employee listed his occupation on LinkedIn as “f*cktard.” Clearly, the employee was not engaging in any discussion of workplace, so he was not under the NLRA’s protection. The NLRA will also not protect patently untrue, egregiously disloyal, threatening or harassing speech.
The NLRB has also made it clear that it will be closely reviewing social media policies for violations of the NLRA. The NLRB indicated that employers should not draft broad social media policies that could prohibit, discourage or chill discussions about wages, hours or working conditions. An appropriate social media policy will specifically discuss the conduct prohibited (e.g. do not discuss trade secrets), specifically inform the employees that they retain their rights under the NLRA and should not use vague terms like “appropriate” or “professional” without providing clear definitions.
The NLRB has a great deal to say about employee conduct and social media policies (which I plant to discuss in a future post), and any social media policy should be discussed with legal counsel before implementation.
The District Court of South Carolina struck down the NLRB requirement that employer’s post the “employee rights” notice poster in US Chamber of Commerce v. NLRB. The Chamber argued that the NLRB could not require employers to post the notice because it is not authorized by the National Labor Relations Act. The NLRB argued that Section 6 of the Act, which allows it to promulgate rules that are necessary to carry out its mission, provided the required authority.
The district judge ruled that Section 6 requires rules promulgated by the NLRB be necessary to carry out other provisions of the Act, and the NLRB failed to prove that the notice-posting rule was necessary. The judge noted in his opinion that with computers and the Internet, information is freely available to employees, further weakening the NLRB’s claim that the poster was necessary.
While this was certainly a step back for the NLRB, this will not be the last we hear of the “employee rights” notice poster. The NLRB will likely appeal the district court’s ruling, and both sides will argue their case before the court of appeals. However, the rules effective date will almost certainly be pushed back yet again, so stay tuned.
UPDATE: The District of Columbia Circuit Court has enjoined the NLRB from enforcing the regulation that would have required employers to post the employee rights notice poster pending further review. The issue is not over yet, but it will likely be at least several months before the NLRB’s appeal is ruled upon.
Computer policies used to be fairly simple: no personal emails, no surfing the internet on company time, and especially no porn. Now, with social media and “the cloud,” there are so many more avenues for trouble.
One of the more prevalent issues recently has been who owns Twitter followers when an employee leaves. The issue is particularly thorny when the employee was hired to manage the employer’s official Twitter account. The employer will argue that the followers belong to it, because the employee’s job was to send out tweets and increase the number of followers. On the other hand, the employee will argue that the Twitter followers belong to him or her, because they put in all the work to increase the number of followers. While no courts have decided this new issue yet, I believe the best way to view the situation is with a comparison. If the employee was hired to create a paper sales directory, and charged with increasing the number and quality of the contacts in that directory, but was not actually selling the contacts anything, do you think he owns the contacts he added? It seems to me that the contacts would belong to the employer.
Social media also provides an opportunity for employees to voice their opinions, to an increasingly large audience, with no filter. There have been a number of recent examples of tweets sent out by employees, sometimes using the company’s official Twitter account, making statements harmful to the company. Even when these employees are punished or terminated, the harmful statement will live on until it is deleted, or sometimes longer with media coverage.
Of course, sometimes employees cannot be punished, even for openly criticizing their employer on a social media site. The NLRB ruled that a group of employees disparaging their employer on a social media site could not be terminated, because the discussion was protected concerted activity.
Another issue for employers, and one that is receiving far less attention, is the danger that “the cloud” poses. There are a number of different services that allow a user to sync files on their computer into “the cloud” (aka servers at different locations accessible from any computer via a web browser or dedicated application). Users can then choose to sync those files in the cloud onto their home computer. Initially, it seems like a great idea. It gives an employee access to their most important documents anywhere. After all, no one wants to fly off to give a presentation only to realize they forgot to copy it to a flash drive or their laptop. However, an employer does not have any control over who accesses the employee’s home computer, nor can it control the level of anti-virus or firewall protection the employee uses. Any number of viruses or malware, or even good old-fashioned people, can access the employer’s important data without its knowledge.
While the new dangers inherent with computer use are increasing at a rapid pace, carefully crafted computer usage and social media policies will go a long way toward helping to limit those dangers. And when crafting new or updated policies, it is particularly important to utilize legal counsel that understands the ever-changing challenges that new technology and innovation create.