Careful social media policy can avoid government attention

As one unfortunate company learned last month, when the National Labor Relations Board takes a sudden interest in your social media policy, getting rid of the government isn't as easy as ignoring a Facebook friend request.

As one unfortunate company learned last month, when the National Labor Relations Board takes a sudden interest in your social media policy, getting rid of the government isn't as easy as ignoring a Facebook friend request.

In a case that has received a lot of attention, a regional office of the NLRB, whose job it is to enforce the National Labor Relations Act and related laws, is alleging that a disgruntled employee of a Connecticut ambulance company was improperly fired for violating the company's social media policy when she complained about her boss in a series of Facebook exchanges with co-workers.

The NLRB says the company's policy went too far by prohibiting all “disparaging” remarks about the company or its employees, and also by requiring the employee to get the company's permission before saying anything online about work.

Whether or not that company's social media policy turns out to be legal, it's pretty onerous. In fact, it goes further than any of Fortune 100 social media policies PulsePoint Group has reviewed, and also goes further than any of the policies we've helped companies develop.  A company can protect itself with a more restrained approach that will gain more employee buy-in and be less likely to generate resentful online posts.

Generally speaking, employees have a federally protected right to talk about their employer, whether online or elsewhere. The key element that invokes the protection of the National Labor Relations Act is “concerted activity,” and the interactivity of social media makes that pretty easy to establish.

But employers do have the right to prohibit outright disloyalty, as well as the right to continue to prohibit unauthorized uses of the company's logo, intellectual property, proprietary information, and so forth. All those traditional limitations can be included in a carefully constructed corporate social media policy without going so far as to attract the government's interest.

True, some experts wonder whether the traditional approaches are up to coping with the viral potential of social media, and I'm not entirely convinced by the NLRB's assertion that the Connecticut case is a run-of-the-mill matter analogous to water-cooler chitchat. As many of us have learned the hard way, Facebook and other social media posts are read by third parties including total strangers, can replicate out of control, and have perpetual life.

Still, unless and until the law gives employers greater latitude, I agree with University of Minnesota law professor William McGeveran, who specializes in Internet and privacy issues:  A thoughtfully crafted social media policy should be able to protect your organization within the existing rules, and at the same time avoid generating unwanted interest from the government.

Bill Feldman is a senior counselor for PulsePoint Group and is a practicing attorney in Washington, D.C. This information does not constitute legal advice. Persons or organizations requiring legal advice should seek the services of a competent licensed professional in the appropriate jurisdiction.

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