Employee Social Media Protection

            There has been a lot of discussion in class, blogs, and tweets about the role of social media in screening employees during the hiring process but not as much about the role of social media for employees currently working with a company.  For this blog I did a little research about the National Labor Relations Board (NLRB) http://en.wikipedia.org/wiki/National_Labor_Relations_Board and their view on unfair labor practices revolving around social media.  I found some of rights protected under the National Labor Relations Act (NLRA) to be a but surprising but here we go…

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            Technologies are changing and evolving rapidly and the use of social media is becoming ever more prevalent.  As a result, the NLRB and private employers have both had to make changes and adapt quickly to keep up with technology.  Policies that are only a few years old may no longer be relevant in the over 100 unfair labor practices cases processed by the NLRB since 2010.  The NLRA protects online communications between employees about their wages, hours, and working conditions but does not protect mere griping.  An example of this is seen in a case where a bartender was fired for complaining on facebook about the tipping policy, which would be protected, had he not called customers “rednecks” and said he hoped they choked.  Broad policies may violate the NLRA since employees have the right to communicate among themselves and to the public about employment-related concerns.  However, the NLRA realizes that employers need to protect trade secrets and confidential communications so they recommend specific policies.

            New issues facing companies and the NLRA include employers controlling employees’ out of work behaviors.  Employers are warned that policing workers’ off-duty lives may be dangerous.  Some states including California, Illinois, Michigan, and Maryland have already banned employer’s from requesting employees’ social media passwords.  Even if it is legal to search for information it may be in the employer’s best interest not to do so.  Information obtained about employees’ personal lives such as illness or religion may lead the employee to later believe that information influenced a decision to unlawfully fire that employee and a suit could be filed.

            Another issue facing employers, employees, and the NLRB is using social media on company time.  Based on a 9/20/12 ruling by a NLRB administrative law judge, EchoStar Technologies LLC needed to change their policy the prohibited employees from using social media on company time.  The use of smart phones allows employees to use social media without using the employers’ computers or internet connection.  Company time is also difficult to define because social media use could have been done on lunch break or before or after work and this is tough for the employer to determine.  Although they can’t fully ban the use of social media at work they can ban using social media for personal matters during company time because personal matters are unrelated to section 7 of the NLRA which protects unionization activities and the rights of non-union employees.  EchoStar could also not ban “disparaging” comments on social media based on a Costco case that found that employers could not ban damaging online statements in its employer handbook, also based on section 7.

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            Laws on social media in the workplace are still playing catch-up with the evolving technology.  They are not perfect and need to be looked at on a case by case basis.  Laws take months and even years to make and technology seems to be changing every day.  It will be interesting to see how these laws do in the race against technology.

5 comments

  1. I do think that it is difficult for lawmakers to create laws for social media in a timely manner. This is not only in regard to the NLRB, but other regulatory agencies as well. Social media in the work place is sort of a grey area. Companies are still trying to figure out what policies and procedures they should put in place. I find it interesting that employees have the right to communicate employment-related concerns on social media. I feel like I always hear about people getting fired for using social media as an outlet for their frustrations with their employer. I think that more states should ban employer’s from requesting employees’ social media passwords. Social media is essentially personal property and I do not think it is appropriate for an employer to search through an employee’s personal information. It will be interesting to see what other policies the NLRB comes out with. And when they do, if they will still be relevant to social media at that time.

  2. I think its interesting too, I wouldn’t have expected that but it makes sense that they can voice their opinions as long as it isn’t too damaging to the company. I definitely agree about about requesting passwords. What’s the difference between that and tapping your home phone. Both are not work related and it is personally property and communication.

  3. I suspect we will get into these issues in depth in class this evening. looking forward to it. Our guest speaker is great.

  4. As for using social media on company time, companies shouldn’t even try to ban it. Social Media today is like texting 10 years ago- it’s the way we all communicate. By now, our smartphone is like another organ in our body, and I don’t think fighting it will be the right solution. Instead, join it! Embrace it! Use this platform to get employees more engaged in what’s going on in the company, and help them contribute more through social media tools.

  5. leomi621 · ·

    I am against employers using information found on social media during the hiring process, but i suspect that unless strict laws are implemented soon, it will become completely unavoidable in the future. I certainly understand the speed with which technology can change working conditions; while working at Nielsen, employees were not allowed to go onto Facebook during work hours, but as soon as Nielsen signed an agreement with Facebook to do market research on their platform, Facebook.com became an open url on every company computer the morning after.

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