The best advice lawyers have for creating a social media policy is what to avoid putting in it.
"[Employers] have to be very clear that their provisions don't prevent employees from engaging in Statute 7 protections," says Attorney Matt Bahl of Portland law firm Verrill Dana. Statute 7, part of the National Labor Relations Act, protects employees' rights to organize for better working conditions and terms.
In 2010, a female ambulance worker in Connecticut fumed about her boss on Facebook, calling him names like "scumbag" and writing, "Love how the company allows a 17 to be a supervisor." Number 17 referred to her company's code for a psychiatric patient. The employee was discharged.
In September 2011, a hospital employee in Miami exchanged private Facebook messages with a coworker blasting their colleagues. "A question: Are [redacted] n [redacted] still there making life miserable for u guys? Is [redacted] still the wimp he is?" he wrote. This employee was also fired.
These discharges are two of many cases that have recently come before the National Labor Relations Board, an independent federal agency charged with safeguarding employees' rights and enforcing fair labor practices. While the incidents appear to follow a common theme — an employee disparages a company or boss online — they actually represent both legal and illegal behavior. The board found that in the first instance, the employee was illegally fired; her online protests were protected under the National Labor Relations Act. In the second case, the board said the employee was airing a personal gripe and his boss had the right to fire him. The difference between the cases had to do with the context of the comments and the facts of each situation. The cases also point to the increasingly complicated rules surrounding employees' use of social media and the extent to which an employer can control that use.
Attorney Rebecca Webber, who represents employers and employees with the Auburn firm Linnell, Choate and Webber, says the NLRB decision backing the worker who called her boss a scumbag on Facebook garnered national media attention. And it made employers nervous. "That started a firestorm. [Employers responded], 'What do you mean? If employees get on Facebook and start slamming people they work with, we can't fire them?'" she says. She surmises that if employers read more NLRB decisions on social media conflicts, they would wonder whether "the world's going crazy."
In the last couple of years, a landslide of social media disputes has been filed with the NLRB, including two involving Maine businesses: the National Federation of Independent Businesses and Skills Inc.
An employee at Skills Inc., a nonprofit in Waterville and St. Albans that provides services for the disabled, filed a charge with the NLRB, which recommended the charge be dismissed. According to the NLRB, which disclosed few facts about the case, the employee was fired after he criticized his employer on Facebook. The NLRB found his post was not protected under labor law.
"He had heard about [the ambulance company case] and misunderstood its scope. We decided to dismiss and he withdrew his charge," Rosemary Pye, NLRB's regional director for New England, wrote in an email.
Tom Davis, executive director of Skills Inc., says the case, and its initial dismissal and later resurrection and settlement, illustrates for him how uncharted these waters are.
"We have general guidelines, but technology and cyberspace evolves very quickly. It used to be we would go to an employment attorney once or twice a year and have policies reviewed, and come away with a high level of confidence. … But that's no longer true," he says. "We are constantly in revision, and tweaking mode, because every new development with Facebook, Twitter, [photo sharing site] Flickr, presents its own unique sets of challenges and issues to be resolved."
Attempting to clear up what has become a murky legal area, the NLRB's General Counsel in August released a report on rulings on workers' rights and online communications. "The report came out in response to a growing concern of human resources professionals, government officials and business people that no one knew what the cases meant or how human resources professionals were supposed to address these issues," says Matthew Bahl, a corporate labor and employment lawyer with Portland firm Verrill Dana.
Did the report provide clarity for the business community? "It's clear as mud," Bahl says, adding that since August, he's continued to field calls from employers who are confused about the matter.
David Strock, a law partner with Fisher and Phillips in Portland who represents employers, gave a talk at a Maine State Bar Association event in December to help shed light on the NLRB's position. "The point of our presentation is that the board is not doing anything crazy; it's applying traditional labor law principles to a social media context," he explains. "A few years ago the board woke up to, 'Wow, social media is a place where people are meeting and talking; it's a lot like the water cooler of the 20th century.'" In this analogy, the NLRB has legal relevance, Strock says, and has set about applying a labor law enacted in 1935 to Facebook and other social media sites to protect employees who want to demand better working conditions or organize.
Pye says her agency views social media as a place where "people are exercising their rights in a new fashion," and while the platform does raise new issues, an employee going home and complaining on his computer about, for instance, a dusty, hot factory, "is really just a further development of very traditional concerted activity."
But doubts have been raised as to whether social media is really akin to water coolers. "These conversations," where employees grouse about their boss or work, "have been going on since the dawn of time," Bahl says. "But now there's a permanence to them. They used to drift off into the ether," he says, waving his hand in the air as if to demonstrate the dissipation of a comment that once may have been harmless, but today, if posted on Facebook, Twitter or a blog, could damage the reputation of a company or a person.
Strock, for one, says he believes traditional labor laws cannot be easily applied to social media. "I think it is a stretch to utilize the principles that were developed in the context of face-to-face activity and apply those to the online context," he says. "In the online context, you can have one person tweeting or making an online entry, and it doesn't just go to coworkers, it can go to millions of people. It really is a different audience."
Despite the difficulties of employees' use of social media, many companies recognize the importance of having online strategies for their marketing and branding efforts. As more of their business moves to the Internet, it's increasingly important for companies to have social media policies, say lawyers and HR professionals. A solid policy should help avoid legal scrapes and shape the corporate brand (see "What to put in your social media policy," this page.)
Deborah Whitworth, president of the Human Resources Association of Southern Maine, says she advises companies to empower a select few employees to represent them online. As for other staff, she says, "I'm not sure social media is the right place to talk about employment, whether it's positive or negative."
Other companies see the marketing value of a robust social media presence that involves many employees as outweighing any inherent risk.
"We encourage employees to use social media because we believe they're our best brand advocate," says Laurie Brooks, a spokeswoman at L.L.Bean. While the company doesn't dictate what employees do online, it does encourage ethical, responsible behavior. "We don't tell employees what they should do. We don't say, 'You must have Twitter.' We want them to have guidelines," Brooks says.
Those guidelines include identifying themselves as L.L.Bean employees, being fair and accurate, avoiding defamatory statements when blogging or making posts related to L.L.Bean, and avoiding references that identify customers, portray them negatively or violate their privacy.
Tom's of Maine launched an online strategy 18 months ago, coming up with protocols for employees' online behavior, according to Rob Robinson, the company's brand manager, community activation. One of the company's objectives was to allow employees to incorporate social media into their jobs. "Social media is an opportunity to show the faces, the individuals who work here," he says. "They're living representatives of how our products and programs come to life. The more our employees are interested in actively being involved, the more that comes to life."
Tom's of Maine does not restrict what employees say, other than to ask they not share proprietary information and they identify themselves as company employees. "We don't have a rule in place to say you're not allowed to talk badly about the company," and if it were to happen, Robinson says, the situation would be approached as an educational opportunity. "We're all encouraged to speak and raise issues and work together to solve them. If [the comment is] active on our platforms, if we noticed it, we might discuss with the person to let them know the info wasn't private."
Tom's of Maine's social media policy seems to hit the right legal balance. It's illegal for employers to have overly broad policies that prohibit employees from complaining about the terms and conditions of employment, or discourage them from communicating with other workers about their dissatisfaction. But distinguishing between a legally protected complaint posted on Facebook and an individual gripe about a manager or company is not always simple.
Although the NLRB is trying to standardize its approach to work-related social media conflicts, its decisions from case to case can be confusing. Some disgruntled employees are protected whereas others are not — and it's often the circumstantial details that determine judgment, such as whether coworkers supported the upset employee, how abusive the comments were or how much they revealed about working conditions.
If a company finds itself in a social-media pickle, it should read the legal case history and seek parallels between its situation and others, Bahl recommends. And don't overreact, he says. "It's not enough to have a visceral reaction" by disciplining or discharging an employee for an online post. "You have to dig deep into the situation and contextualize."
So far, the social media cases before the NLRB have been settled out of court. "There has been a whole lot of noise but what people don't focus on, and this is good news for employers, is that this is a remedial statute," attorney Webber says. "It's supposed to fix the problem." Rather than penalizing companies with fines, the NLRB asks companies in the wrong to rehire discharged employees and provide back pay and interest.
Yet, as the issue remains in flux and the NLRB continues to make decisions about social media disputes, employers and HR managers will likely stay perplexed. Bahl points out that the NLRB is made up of five members with five-year terms who are appointed by the president. "In the last 20 years, the board has become increasingly political depending on who's in the White House," Bahl says. "Another thing that's frustrating for employers is, it's wait and see. It could be completely different later. Labor law changes rapidly, particularly with swings in political parties."
Strock agrees. "This area is so fluid," he says. But that doesn't mean an employer should ignore it until the rules are sorted out. "I think the amount of information and activity that's occurring online is too significant for employers to simply turn a blind eye," he says.