Why Your Employer’s Social Media Policy May Be Illegal

imgresThere’s a good chance your employee handbook tells you to be careful how you behave on social media. Perhaps you’re told that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline,” or prohibited from “damaging the company” with your tweets or Facebook posts. Now the government is telling employers that many of these policies (including the ones I just quoted) aren’t legal. Before you tweet about your, however, read on.

Many employers have extremely broad social media policies: Don’t discuss company issues publicly, for instance, and don’t disparage manager or co-workers. Disobeying can get you fired. But as the New York Times reported yesterday, labor regulators have issued a series of recent rulings that say many of these policies are illegal. They’ve pushed large companies including General Motors, Target, and Costco to rewrite their rules for social media in response.

The chairman of the National Labor Relations Board, Mark Pearce, explains that social media is the new water cooler. Workers have always had the right to talk with each other with the goal of improving pay, benefits, and working conditions. So all the government is doing now, he says, is “applying traditional rules to new technology.” In essence, if workers are using social media as a space to complain in a plausibly productive way about working conditions, they’re in the clear. But lone ranters aren’t in the clear.

The article offers a few interesting examples of how this plays out.

1. A social services employee threatens to complain to the boss that other workers aren’t working hard enough. A coworker posts a message on Facebook asking, “My fellow co-workers, how do you feel?” A profane, angry pile-on results, with many complaints about how they’re already over-worked. The employer fired five of the case workers. The board ruled the firings were unlawful, because the posts qualified as “concerted activity” for “mutual aid.”

2. An Illinois bartender, angry about not receiving a raise in five years, takes to Facebook to call his customers “rednecks” and saying he hoped they choked on glass while driving home drunk. In this case, the board ruled the firing was justified, because the employee was just venting, not doing anything that could qualify as organizing.

The lesson here: Despite the shifting law, smart employees still tread carefully online.

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