- The Washington Times - Monday, June 25, 2012

Companies trying to monitor — and control — what their employees are saying about them on Facebook, Twitter and other social media are finding their policies under attack from the Obama administration.

In a little-noticed advisory this month, the National Labor Relations Board (NLRB) found that six of the seven corporate social media policies it examined included provisions that failed to pass regulatory muster, proving too vague to enforce or too intrusive on their workers’ right to free expression online.

The labor board memo is an attempt to balance the need by companies to preserve confidential financial and operating information versus the rights of employees to be able to discuss “terms and conditions” of their employment among themselves in the age of instant global access through social media.

The NLRB analysis took issue with one company’s mandate that employees not “pick fights,” stay away from controversial topics such as religion and politics, and adopt a “professional tone” in their use of social media.

“Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion,” said acting NLRB General Counsel Lafe Solomon. “Without further clarification of what is ‘objectionable or inflammatory,’ employees could reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”

The NLRB memo — the third that the independent agency has issued on the broad topic of social media — has business groups throwing up their hands in confusion, wondering what exactly they can do to control what their employees say and do on social media.

The Society for Human Resource Management (SHRM) said the NLRB’s guidance on social media policies is “likely to be challenged in the courts,” because it is so ridiculous.

“The NLRB was troubled by social media policy clauses that recommended: ‘Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations,’” SHRM pointed out in a blog post.

The SHRM analysis accused the labor board of taking a “sledgehammer” to company policies on social media.

Seeking control

As the use of social media continues to grow, more employers are turning their attention to it with online policies that they assume will protect them from employee misconduct.

Social media policies typically cover the use of sites such as Facebook and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies.

“Employee use of social media as it relates to the workplace continues to increase,” Mr. Solomon said, “raising various concerns by employers, and in turn, resulting in employers’ drafting new policies and rules to address these concerns.”

The workers who want to stay on the boss’s good side heed these warnings, and those who don’t often get fired.

The way management sees it, the guidelines are there to draw clear lines for workers on what is permissible. Employees can’t say they weren’t warned if they disobey a written social media policy.

But the NLRB said many social media policies offer “overly broad,” all-encompassing guidelines that are “unlawful,” and called for more specific examples.

In his report on social media issued May 30, Mr. Solomon argued that six of the seven companies he studied violated at least in part the federal National Labor Relations Act with their social media policies.

The NLRA grants workers the right “to self-organization, to form, join, or assist labor organizations.”

Companies are barred from getting in the way of these activities. They may not “interfere with, restrain, or coerce employees in the exercise of” those rights.

But many social media policies do just that, Mr. Solomon argued, because they are so broad that they leave the door open for employees to assume they regulate union or organizing discussions online.

Individual cases

Mr. Solomon listed some of the mistakes these companies made in their social media policies.

In some cases, policies warn employees to “think carefully about ‘friending’ co-workers,” but this would “discourage communications among co-workers and thus it necessarily interferes with [union] activity,” he wrote in the report.

In another example, companies tell employees their posts should “not reveal non-public information on any public site.”

According to the NLRB general counsel, that “would be reasonably interpreted to apply to discussions about, or criticism of, the employer’s labor policies and its treatment of employees.”

Encouraging workers to “report any unusual or inappropriate internal social media activity” could be seen as “encouraging employees to report to management the union activities of other employees.”

The moral of the story: Corporate social media policies should be specific and contain examples, he said.

Mr. Solomon gave one example of a policy that gets it right. It encourages employees to be respectful in posting comments, complaints, photographs and videos.

He praised the social media policy for the specific examples it includes. It warns employees not to post content that “could be viewed as malicious, obscene, threatening or intimidating.”

It also explains that harassment and bullying would include “offensive posts meant to intentionally harm someone’s reputation” and posts that “contribute to a hostile work environment on the basis of race, sex, disability, religion.”

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