By Daniel Handman, Hirschfeld Kraemer LLP
Virtually everyone uses social media. The statistics are just astounding, particularly when you consider that social media did not exist a decade ago. Facebook boasts 1.1 billion users; Twitter 500 million users; and LinkedIn 225 million users.
But, the statistic that may be the most shocking is the number of people who use social media at work. According to a recent survey, one-third of the workforce in the United States uses social media for at least an hour a day at work, and one-quarter of American workers would not take a job if their access to social media at work was cut off.
The widespread use of social media has struck fear into some employers about decreased productivity, unwanted publicity, and a general increase in exposure for various work-related claims. But, at the same time, employers also have been able to harness social media for all sorts of benefits, not only with the products they sell or the services they provide, but also as a boon to employee morale.
However one looks at it, social media policies are now just as necessary for employers as discrimination, leave, and vacation policies. Of course, once employers began to develop social media policies, various government agencies made their voices heard about what they would not allow in such policies. In some cases, the government's guidance has been intuitive and sensible, but in other cases, especially from the National Labor Relations Board (NLRB), it has been both confusing and self-contradictory. Because of the NLRB's lack of clarity, employers have largely been left to guess whether their policies run afoul of its dictates.
Nonetheless, some basic rules emerge from the chorus of government agencies that have shown interest in social media, and those rules can be incorporated into any social media policy. Ultimately, social media policies—like any other policies—are about respect: respect for an employer's legitimate needs and respect for an employee's privacy. If a social media policy is centered on respect, it will work to highlight the benefits of social media and to guard against its potential misuse.
As social media has become more common in the workplace, numerous federal agencies have offered opinions about its implications for areas under their jurisdiction. In 2009, the Federal Trade Commission issued a guidance requiring bloggers and celebrities to disclose “material connections” when endorsing products, and it has brought enforcement actions against noncompliant companies.1 The Food and Drug Administration warned Novartis about violating its rules on misleading advertising by allowing consumers on Facebook to “share” testimonials about certain medications without also disclosing the risks.2 And, the Securities and Exchange Commission also issued a report on social media after the chief executive officer of Netflix posted on his private Facebook page that the company's website had streamed 1 billion hours of content—a statistic that had previously been undisclosed to other shareholders.3
Without question, the NLRB has gotten the most press for its efforts to regulate social media. The NLRB is best known for regulating the interaction between employers and labor unions, but the National Labor Relations Act gives all employees—regardless of whether their workforce is unionized— the “right” to engage in “concerted activities” for the “mutual aid and protection” of their co-workers.4 It is that right that the NLRB has used as its jurisdictional mandate to regulate social media posts of all employees, whether the workforce is unionized or not.
The NLRB takes the position that any policy that “would reasonably tend to chill employees” in the exercise of their right to engage in “concerted activities” is invalid.5 Not surprisingly, what has drawn the ire of lawyers representing employers is the NLRB's broad view of policies that it deems to have an unreasonable chilling effect.
For example, a car salesman in suburban Chicago criticized his dealership on Facebook for serving what he viewed as lousy food at a client appreciation event. The dealership fired the salesman under its policy on “courtesy,” which read:
Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.6
The NLRB ordered the employer to remove its “courtesy” policy.7 The board's reasoning: the prohibition on “disrespectful” language or statements that injure the company's “image or reputation” might chill employees from objecting to their working conditions or soliciting others to improve them.8 Since then, an administrative judge at the NLRB also invalidated a social media policy that prohibited employees from using social media “in a way that may be disruptive, offensive to others, or harmful to morale” for the same reason, namely that employees would be chilled from complaining about their employer, thinking that such speech would be viewed as disruptive, offensive, or harmful.9
Administrative law judges at the NLRB and the board's general counsel have been even more expansive in their views of the supposed “chilling effect” of overbroad social media policies. Among other things, the Board, ALJs at the Board and the Board's General Counsel have found social media policies improper where they required employees to use a “friendly tone,”10 to ensure the accuracy of their posts11, to refrain from releasing confidential information about co-workers or the company,12 or to seek the guidance of management employees when in doubt.13
These decisions have been roundly criticized not only by management lawyers, but also by former board member Brian Hayes, who came from a management background. Critics of the NLRB, like Hayes, argue that by parsing out isolated words or phrases in a paragraph encouraging employees to be courteous to customers, in the car dealership case, for example, the NLRB went out of its way to twist seemingly innocent policies to have a meaning that they were clearly not intended to have.14
Many of these counterintuitive decisions may be reversed on review or appeal and, to be sure, their validity was called into question by recent decisions delegitimizing President Obama's recess appointments to the NLRB, which will be heard by the Supreme Court in the Fall Term.15 In the end, the lasting effect of these decisions is yet to be seen.
Second, social media policies should be centered on one basic theme: respect. This may well sound backward to many employers. Why, after all, should employers tolerate, much less respect, a tool that employees can use to engage in widespread, public criticism about the way they are treated? The answer is actually quite simple. Every policy in an employee handbook should be focused on a relationship of mutual respect.
Indeed, several states enacted statutes prohibiting employers from requiring employees to disclose passwords to personal social media accounts. In so doing, they effectively codified the notion of respect with employees' social media usage.
Of course, the most significant impact of social media on the workplace is that it makes it easy for any employee to make public comments about his job. It is as simple as typing a hashtag and creating a viral commentary about an employer's practices. That gives employees unprecedented power.
Consider this example. A large restaurant chain recently fired a young waiter for making stupid comments on Twitter about his supervisor.16 In response, the waiter created a two-minute YouTube video about his experiences at the restaurant; it went viral; and he now has 382,000 followers on Twitter (@Traphik) and thevideo has nearly 500,000 YouTube hits. This waiter now has more Twitter followers than famous journalists Diane Sawyer, Anderson Cooper, or Scott Pelley.
To guard against improper use of that power, employers should ensure that their policies convey that they will respect their employees' use of social media, so long as employees respect them back. So, how can employers accomplish that seemingly difficult task in a few pages?
A social media policy must convey an expectation that employees will use social media and, in fact, that employees may well use social media to comment on their employers. It is not all that different from an email or internet use policy. Most email/internet policies reflect the expectation that email and internet at work will, from time to time, be used for personal purposes and that infrequent use, so long as it is proper, is permitted. The same is true of social media: Employers understand employees may use social media for all sorts of private purposes, and employees cannot be prohibited from doing it, but there are certain reasonable rules that employers expect their employees to follow when using social media.
Those rules must be conveyed clearly and concisely to employees. The word “respect” is a helpful acronym to summarize those rules.
Social media is a tool. But unlike other tools offered to employees in the workplace, social media undergoes drastic changes every day. Think about it: in the past 30 years, how much have telephones changed? Sure, speaker phones and conference calls were not widely used in the 1980s, and mobile phones changed the world of telecommunications significantly.
Compare telephones with social media. Facebook was the first real social media site, and it was created in 2004—less than 10 years ago. In less than a decade, hundreds of social media sites have emerged (and many have gone offline), and today, anyone with a smartphone can instantly post his feelings or a high definition video from anywhere on any topic for thousands of people to see.
Like any policy, even the most carefully crafted social media policy cannot address every possible threat or benefit posed by social media. It seems as if every day a new, embarrassing social media story goes viral. But, employers who respect the power of social media and the freedom that it creates for employees will get respect back and will inevitably come out ahead.
Daniel Handman is a partner at Hirschfeld Kraemer LLP in Los Angeles, where he represents companies in employment-related disputes. He is also the editor of the California Workplace Advisor blog. Handman can be reached at dhandman@HKemploymentlaw.com or through the firm's website,http://www.hkemploymentlaw.com.
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