A Modest Proposal: How to Have a Social Media Policy and Keep Your Employees Happy

Last week, the NLRB issued its first ruling concerning social media posts and employee terminations. An administrative law judge ordered the non-profit agency Hispanics United of Buffalo (HUB) to restore the jobs of five workers with backpay. The five workers had engaged in a conversation on Facebook during off hours, defending their job performance after hearing a coworker’s criticisms. HUB fired them, asserting that their Facebook comments constituted harassment of the co-worker and violated HUBS’ anti-harassment policy.

The judge opined that the “Facebook communications…, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.” He explained that, “employees have a protected right to discuss matters affecting their employment
amongst themselves.”

So what does this mean for employers? Coming on the heels of the NLRB’s settlement with American Medical Response of Connecticut, this case reinforces the concept that the existence of a social media policy is not a panacea. The policy must be well-crafted and not overbroad. Then, enforcement of the policy must be undertaken judiciously and cautiously.

Consider another social media news story from last week. An Applebee’s employee turned to Facebook to protest Applebee’s request that its employees sign a social media policy prohibiting “negative comments” about the brand. The employee believes the language is overbroad. He blogs regularly, and he worries that his political or religious positions might be seen as adverse to Applebee’s interests. He is asking Applebee’s to change its policy to refer to the more narrow category of “slanderous comments.”

While we do not know how Applebee’s will respond to the negative press that has come from its attempt to control “negative comments,” we do know that employers need a different strategy. Employers can and should have policies in place to protect their brands, but free speech and labor law issues abound when trying to squelch social media conversation. Logic dictates that social media policies must exist, but they need to be accompanied by a sound business model that empowers employees and listens to them.

Here is a potential solution: Create a password protected intranet site for employees to talk to one another. Encourage employees to use it and then respond to their concerns before employees take to public sites. If employees are treated with respect and afforded a community location for discussion, they are more likely to treat the employer respectfully and not air dirty linen in public.