When using social media on behalf of your organization, you may be encouraged to keep things informal. You’re told it’s a different environment requiring a more conversational tone than other marketing channels, and you see examples of companies — even in staid, traditionally conservative industries — taking a lighthearted approach. As a result, it’s easy to get a little complacent and forget about the risks and responsibilities that come with social media, including those that apply to your employees’ use of it.
The problem, of course, is that being too complacent can lead to serious trouble — and not just in the court of public opinion but in the courtroom as well. As these challenges have emerged, businesses are turning to their legal counsel to understand what they need to do to guide their employees and protect themselves along the way. Here in northeast Indiana, Jason Clagg and Adam Bartrom, attorneys at Barnes & Thornburg LLP, are among those responding to these questions. I recently spoke to Jason and Adam to learn more about what they’re hearing and where employers should focus their attention. Here is what they had to say.
Anthony Juliano: The National Labor Relations Board has made several recent attempts to protect employee activity on social media. Do business owners need to pay close attention to what’s happening — and if so, why?
Jason Clagg: Business owners need to pay very close attention to the evolution of social-media law and, most notably, the interpretations coming from the board (and its surrogates). These interpretations have been coming at a brisk pace and are not always intuitive. Unfortunately, a business owner who ignores them entirely may find herself with significant headaches. While it is bad enough to have an employee call you a jerk on Facebook, it is far worse to have to rehire him because his termination was mishandled or a company policy that may have been thought to be legal a few years ago turned out to be illegal.
AJ: What are you seeing that businesses absolutely need to be aware of?
Adam Bartrom: Businesses absolutely need to be aware of the National Labor Relations Board, its jurisdiction and its ability to award damages to employees including back pay and reinstatement. This is nothing new to unionized employers, but it’s often a shock when we tell nonunion employers that they are also subject to the reach of the NLRB. That is probably worth saying again: The NLRB can (and has) come after nonunion employers (even nonprofits) just as it can unionized employers so this an issue of which all employers should be aware.
AJ: How important is it for companies to have a social-media employee use policy? Do you recommend that all employers have one in place?
AB: While there may be an exception to the rule, we recommend that employers have a social-media policy in place. That said, simply having a policy is important, but it’s not the endgame. Just like any other policy, it can only be an effective shield to liability if employees are trained on the scope of the policy and the employer administers the policy uniformly.
Training is particularly important in the social-media realm because providing examples of what is permissible and not permissible under the policy goes a long way with employees. It also provides an avenue for the employer to talk frankly to its employees about responsible use of social media. The thought there being that if employees are properly trained, they are less likely to make dicey comments on Facebook, Twitter, etc., that force employers to make hard decisions of whether or not to terminate that individual’s employment.
AJ: What are some of the critical things to include — and omit — in a social-media policy?
JC: There is no one-size-fits-all policy. What may be appropriate for a large, West Coast technology company may not be appropriate for a midsized manufacturing business in the Midwest. Be careful with a copy and paste policy from the Internet.
With that said, there are definitely some high notes an employer will want to hit. The policy should be fairly specific so as to avoid including protected activity. The policy should include examples to add to its specificity. The policy should focus on egregious postings (i.e., harassment, bullying, intentional harm to reputation), not on the benign (i.e., requiring employees to be courteous without further clarification). The policy should address the disclosure of trade secrets and confidential information, as long as such information is adequately described.
On the flip side, what should be omitted? Lots. In fact, lots of stuff that would otherwise seem logical and reasonable should be omitted. For instance, according to the board, you could not require employees to refrain from “disparaging” the company or expressing their dissatisfaction with the employer publicly.
AJ: What are the priorities for employers based on what we know today? What can they do to protect themselves?
AB: Institute a policy, train employees on that policy and then administer the policy with thick skin. The last point is the most critical. An overwhelming majority of cases where employers are getting dinged occur when an employer fires an employee for writing something negative about the company or a supervisor (i.e., “My boss rejected my pay raise proposal again. What a jerk!”).
It is important to remember that the NLRB allows employees to openly discuss topics that are directly and indirectly linked to wages, terms, hours and conditions of employment, and some of those comments may be inflammatory. Under the current NLRB regime, it’s critical for employers to have thick skin when it comes to these kinds of comments as the NLRB has held time and again that such statements may be protected under the law. Unfortunately, given the current flux in this area of the law, making a reasoned determination on whether or not to terminate an employee for social-media activity usually involves picking up the phone and calling the company attorney.
AJ: Thank you both for your time.