As Featured In The Summer Issue Of Ag Innovator:
I’m From the Federal Government & I want to be Your “Friend”

By Joseph G. Schmitt & David A. James

Facebook, Twitter, Google+, LinkedIn, MySpace and other social media sites are continuing to mushroom in popularity. It is highly likely that your employees are using at least one form or another of social media — in some cases to post information about their workplace, supervisors, or coworkers. As a result, many employers have implemented, or at least considered implementing, internet or social media policies in an effort to protect their reputations, protect their employees, and prevent the dissemination of confidential or proprietary information on the internet.

Many of these policies likely contain blanket prohibitions of disparaging, discriminatory, or defamatory remarks in relation to the company or its employees. These policies seem to make perfect sense, but unfortunately, employers need to rethink them in light of the National Labor Relations Board’s (NLRB) recent efforts to regulate employer policies regarding social media.

The NLRB has stated that all 52 of its regions currently have active complaints related to employees’ social media use as protected concerted activity. Further, in addition to filing complaints, the NLRB has threatened to file complaints against many other companies if they refuse to settle employee complaints about adverse actions resulting from social media usage.
It is clear that the NLRB has made this issue a top priority, and that spells trouble for employers’ internet or social media policies or employers who have taken adverse action against employees for employment-related social media posts.

Employers should take the following steps to avoid running afoul of the NLRB:

1. Do not include blanket prohibitions of employee speech related to work and
   working conditions like the one included in American Medical Response’s (AMR) policy. Such policies may draw the attention of the NLRB even if an employer does not take adverse action against an employee.
    
2. Include a provision that expressly states that the policy does not prevent employees from discussing their working conditions, including but not limited to their wages, hours, workload, etc.
    
3. Expressly state that any confidentiality provisions do not prohibit an employee from discussing his or her own wages or working conditions.
    
4. Do not prohibit employees from identifying themselves as company employees.
    
5. Explain that the policy is meant to protect both the employer and the employee and ask the employee to think twice about internet/social media usage in relation to the company. Note that negative posts about the employer can reflect poorly on the employee as well.
    
6. Be aware of union organization when considering implementation of the policy; drafting or revising the policy in the face of union organizing activities could draw a complaint.

Fortunately, there are some concrete actions employers can take to enhance their protection against such complaints. First, employers should continue to maintain already established internet and/or social media policies. These policies are still valuable as they provide protection for both the employer and the employee. However, employers should take the steps listed above to avoid running afoul of the NLRB.

Furthermore, an internet/social media policy can and should still prohibit disclosure of the company’s or the company’s clients’ confidential or proprietary information as well as disclosure of legally protected private information. Additionally, the policy can and should still prohibit harassment and discrimination, obscenity, and disloyalty, which amounts to defamatory and false statements.

Though the NLRB’s actions as of late in regards to employees’ use of social media are worrisome, these steps should go a long way in protecting employers if and when the NLRB comes calling.

Joseph Schmitt & David James are attorneys at the law firm of Nilan Johnson Lewis PA, Minneapolis, Minnesota. Members are entitled to thirty minutes free, per issue, with Joseph Schmitt. For more information, go to FarmEquip.org.

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