I am not a lawyer, but I do know that if you encounter an article that begins with “I am not a lawyer, but…” you should stop reading immediately. If you’re still reading, then you’ve given implied consent to me sounding off about this recent Facebook/NLRB dust-up on the basis of no legal training, but no shortage of opinions.
In short, the National Labor Relations Board ruled that an ambulance company acted illegally in firing an employee after she criticized her boss to other employees on her Facebook page. The company’s social media policy was deemed too broad, as it prohibited employees from depicting the company “in any way” on any social network site. Yeah, that does sound a tad broad.
But the widespread reaction in the blogosphere, depicting the ruling as blanket protection for employees’ right to say what they want about their employers on social media, also misses the mark. The NRLB ruling is actually very narrow; it held that a negative discussion about the company on Facebook constituted concerted protected activity because employees have a right to organize to improve their workplace, and the conversation could be interpreted as an effort to do so—even if the content was pretty snarky (“snarky” being the legal term, of course). It’s not clear that the employee’s actions would even have been protected if no one had replied to the post, or if the post had been directed at non-employees.
In truth, the ruling makes social media policy a stickier wicket than ever before. As the New York Times piece on the Facebook postpoints out, a company could still fire an employee for disparaging an employer for reasons unrelated to work, or for disloyalty, which generally means defaming the company without supporting facts. I learned that lesson the hard way, when I was forced to retract my blog post “White Horse: Fourth Horse of the Apocalypse?” pending further end-time revelations. (This seems like a good time to point out that satire is considered protected speech.)
The bottom line is this: the notion that companies need to chuck out any restrictions on employee social media conduct is simply untrue. What is manifestly true is that all companies need social media guidelines; this may seem altogether obvious, but a recent Deloitte survey on social media ethics found that as many as one-third of companies don’t have guidelines. I suspect the percentage is much higher if small to medium businesses are taken into account.
If drafting social media guidelines sounds like as much fun as a sharp stick in the eye, you could, ahem, work with your digital agency to get the job done. You could also take up LinkedIn’s Mario Sundar’s fine suggestion that policies be formed collaboratively with employees. That’s a great way to get employees on board for being more careful about their use of social media without having to be all legal and ham-fisted about it.
Say, for instance, that you’re a childcare provider, and there’s a Facebook group specifically devoted to employees who like to get their drunk on after a hard day of caring for our nation’s future. Nothing illegal about that, but employees might be persuaded that such brand-linked bacchanalia is bad for business, which is bad for them. Social media collaboration prevails, and everybody wins.
At the root of this issue is the simple truth that in social media, transparency and open expression are flip sides of the same coin. Employers have more insight into what their employees do and think in their off-hours, and employees have a bigger sounding board for their gripes about their employers. This kind of power demands a measure of discretion on both sides.