How social media is affecting employment law?
Employees are increasingly spending more time during the workday on social media, and not necessarily for business purposes. There was a recent study that said that employees spend approximately ten hours a week during the workday surfing social media. Oftentimes, these are the same people who are claiming that they worked an extra half-hour and now they want overtime for it. There’s also going to be some issues with privacy on employer hardware, and monitoring employee use of social media—how far can an employer intrude into the non-work-related social media that employees are engaging in?
a recent case, which involved a company’s social media policy, the NLRB issued a complaint for an unfair labor practice because an employee’s use of social media can be considered “protected concerted activity.”
What can an employer do, right now, to protect himself? The answer is to implyment a “social media policy”, wherein the employer informs the employee of what exactly the companies’ policies, if and when, the employee uses social media at work. These types of policies need to be signed by both the employee and employer and placed in the employee’s file.
A social media policies must be communicated clearly. Where companies have clearly communicated policies, the employers’ search of text messages was “not overly intrusive” and therefore lawful. This is important should an employer needs to defends oneself in a lawsuit, or labor action.
Before implementing such policies an employer should know when they, themselves, may violate the NLRA by implementing overly broad policies. An employer violates the law if a workplace rule explicitly restricts Section 7 protected activities (i.e., “You can’t talk about your wages.”). but prohibiting conduct that’s clearly not protected under the NLRA isn’t a violation – an employer may properly restrict communications such as: (1) conversations about the employer’s proprietary information, (2) explicit sexual references, (3) criticism of race or religion, (4) obscenity, profanity, or egregiously inappropriate language, (5) references to illegal drugs, and (6) online sharing of confidential intellectual property.
Because social media is a fact of life for millions of people, the real question is not whether employees are using social media while at work, the real question is how to regulate it so no harm befalls the employer, or other employees.
Further, because many, if not most, networkers are employees, the question is also how far employers can and should go to guide employees’ social networking activities to prevent or reduce employment-related problems.
Employers must implement social networking policies, obtain employee consent for monitoring and conduct their monitoring legally and responsibly.
There are numerous other legal issues related to the use of social media by employees in the workplace, such as using work time for such activities. Further articles in the future will focus on such issues.
Reasonable and responsible employee use of social media starts with clear, work-connected policies, including a social media/networking policy, to frame acceptable and unacceptable e-behavior.
Every employer needs a simply worded social media policy to provide employees with practical guidelines to help prevent unthinking, harmful employee actions. Having no such policy is like having no curfew for teenagers. Few things are worse for employers or parents than hearing “You never told me that!” Tell your employees, nicely but firmly, what you expect from them.
While socially networking, we must avoid:
• Illegal activity.
• Disclosing trade secrets or other confidential or sensitive information.
• “Watering down” patented or copyright-protected information.
• Harassing or otherwise being mean-spirited by spreading gossip—or even the truth—about others.
• Wasting our work time or that of others.
Consent for monitoring is crucial, but “sell” it to employees.
At work and beyond the workplace, however, employees can agree to and accept as reasonable the privacy standards that employers offer at the time of hire, or as a requirement for continued employment.
Note that even with consent, overbroad or intrusive monitoring will still spell trouble.
An employer’s right to monitor and search extends only to information needed to protect its business and its people. Never seek other information.