Tag Archives: social media policy

Social Media Part 2: Trashing the Boss

In my previous post, I discussed employer social media policies. Left unanswered was the question: What if an employee trashes the company or their boss? Like many other employment issues, this one is complicated.

The source of the complication is Section 7 of the National Labor Relations Act (29 U.S.C. Sec. 157), which protects any employee who “engage[s] in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This applies to all employees, not just union employees. Among other things it means that employees are entitled to discuss with each other the terms and conditions of their employment.

In the social media context, this means that employees may express concerns online about their employers if it can be deemed concerted activity regarding work conditions. So if two or three employees go online and start a discussion of how low their wages are and what they can do to increase them, this is protected, even if they say some unkind things about the boss along the way.

Mere rants by one employee, however, may be punishable. For example, in one case a bartender was fired for griping to his stepsister on Facebook about his pay and insulting his customers. Among other things he called the bar’s customers “rednecks” and said he hoped they choked on glass as they drove home drunk.

This a developing area of the law for employers and there is a lot of online commentary about it. For a comprehensive overview of what’s happening, check out a hot-off-the-press report by the U.S. Chamber of Commerce.

Have you had any experiences with employee use of social media?  ~Amy Stephson

Want a Social Media Policy?

More and more employees are using social media (Facebook, LinkedIn, Twitter, personal blogs, etc.) on a routine basis.  Why do employers care?  Because employees may get online and merrily create discrimination, hostile environment, or defamation claims, hurt the organization’s reputation or brand, create antitrust liability, or otherwise cause heartburn for the organization and its other employees. 

In earlier posts about Facebook and online romance, we discussed the potential harassment implications of online posts by employees about other employees.  In this post, I’m going to briefly address the kinds of provisions that an employer will want to include if it decides to draft a social media policy for its employees. 

There are a number of theories as to how to draft a social media policy, including advice on how to get employees to actually follow the policy.  Sticking to basics, however,  employers will want to make sure that four points are included one way or the other:

  • Employees are responsible, both legally and generally, for the content of their online activities.  While you likely don’t want to say it in the policy, this means: “Employees, you can be sued or fired for what you say online so be careful!”  Alternatively it means: “Don’t be stupid!”
  • If an employee is discussing anything relating to the employer, e.g., its products and services, the employee must identify him or herself as an employee and make it clear that he or she is not speaking for the company.  In fact, Federal Trade Commission guidelines require an employee who endorses a company’s products or services to disclose the employment relationship. See, www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf.  
  • Employees may not disclose confidential or propriety information about the employer.  No stock tips either: the Securities and Exchange Commission prohibits insider trading tips and this includes tips via social media.  See http://www.sec.gov/answers/insider.htm
  • Employees should not mention clients or other employees without their approval.

If you want to see a comprehensive policy, check out IBM’s “Social Computing Guidelines,” which you can find at www.ibm.com/blogs/zz/en/guidelines.html.  It’s a veritable statute, with a preamble, guidelines, and detailed commentary – and is a good place to start. There are numerous other sample policies online as well.

So what about a policy that tells employees they can’t trash the company or their boss online?  Stay tuned: this is more complicated than you might think.  I’ll write about it in my next post.  In the meantime, do you have any tips on social media policies?   ~Amy Stephson