Does Your Social Media Policy Violate the NLRA?

First, do you even have a social media policy?  Chances are, you don’t.  Let’s step back further.  Do you have a computer use policy?  If you can’t answer that question affirmatively, you’ve got some work to do.  Without such a policy your firm can be exposed to nasty surprises on many levels.  At it’s basic level, a computer use policy should address and protect the firm from the following scenarios:

  • Use of  (and liability for) the firm’s resources to illegally copy software
  • Use of (and liability for) the firm’s resources to download or view pornography
  • Introduction of viruses and spyware to the firm’s network operating system
  • Use of  (and liability for) the firm’s resources to transmit or store data in such a way as to violate Client Confidentiality rules of ethics
  • Use of  (and liability for) the firm’s resources to disparage, defame, or slander
  • Use of  (and liability for) the firm’s resources to store or perform personal documents and work
  • Loss of work time due to internet personal shopping, surfing, visit to inappropriate sites, text messaging and so forth

Firms which have computer use policies have hopefully kept them up to date to include a wider range of concerns, such as including language which specifically prohibits cell phone use or text messaging while driving on behalf of the firm — and designating such use clearly outside of the scope of employment.  For staff members, use of cell phones while in the office, during business hours, are often prohibited as well. 

With the explosion of a whole new form of communication — social media — another potential set of problems hit our radar screens.  Right now we are experiencing a tension between protected activity (under the National Labor Relations Act) and an employer’s desire to limit exposure to a whole host of possible nasty activities.   No one would hesitate to feel justified in prohibiting employees from announcing confidential information about the firm (for example, a proposed merger) on a public medium such as Facebook, even though it is “their” profile and not the firm’s.  But, if you criticize your associate for failure to find that rare case on a research assignment, should the associate be able to call you a jerk (or worse) on their Facebook page?  No doubt you do not hesitate to say no.  But NLRB may feel otherwise,  particularly if others join in on the discussion about your relative shortcomings.  It might be deemed protected speech.

A November 10th Alert from the Labor and Employment group of Ballard Spahr puts this issue squarely in our sights by informing us of a complaint filed last week by the NLRB against American Medical Response of Connecticut, in which an employee posted negative comments about her supervisor on her Facebook page.  She was subsequently fired.  As the Ballard Spahr Alert points out, it’s less than a year since the NLRB issued what appeared to be a pro-employer advice memorandum regarding social media policy language.  This new case seems to find NLRB taking a much different stance from it’s memo.

These are confusing times.  To do nothing, however, is probably the worst approach you can take.  At the least you want to make sure you have a policy in place regarding personal Facebook pages which prohibits use of the firm name, logo, or other firm information without the firm’s advance written permission, and further prohibits discussion about clients, matters, or anything else which may be prohibited under the Rules.  Contact someone who is more knowledgeable than you to get assistance in formulating a reasonable policy.

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