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Posted: May 10, 2012

Social media and your business

How to avoid legal pitfalls and empower your company

Jennifer England

Facebook, Twitter, LinkedIn and other social media sites have become staples of workplace communications – as a business tool and just for fun. Palo Alto Networks estimated earlier this year that social media use on corporate networks grew by 300 percent between mid-2010 and mid-2011.  It’s safe to say that Colorado workers are posting photos to Facebook and tweeting to their followers, which can pose challenges for business leadership and HR professionals as they enact social media policy.

Mountain States Employers Council supports human resources and employment law needs of the business community, and social media in the workplace has been a hot topic over the last few years. Our advice to businesses: understand the laws impacting your employees’ communication via social media channels and then develop policies that appropriately, responsibly address usage.

Understanding Access

Here’s a scenario to consider: You just received an email from an employee asking if you’d seen that recent post on Facebook talking trash about a manager.  You don’t have access to the post, so you ask the concerned employee to share. The employee is voluntarily sharing something she has access to, right? How you received the information is more important than you might think.

Have you heard of the Electronic Communications Privacy Act of 1986? It’s hard to believe that a law dating back to the 80s could be relevant to social media, but this policy originally put in place to stop capture of electronic transfer of information by law enforcement could actually apply to you. If you’re not an intended user or recipient on information posted on Facebook, for example, you’ve violated the Electronic Communication Privacy Act. Understanding the laws in place to protect employees’ online communications is an important first step and key to developing social media policy.

Avoiding Overly Broad Policy

There’s also a growing area of law under the National Labor Relations Board (NLRB) that employers should make note of. The National Labor Relations Act, Section 7 protects almost all employees, unionized and not, engaging in “protected and concerted activities.” For example, employees communicating with other employees or outside individuals about terms and conditions of employment including pay, benefits, and working conditions are protected under this law. Similarly, employee complaints via social media, including complaints about managers that lead to comments from co-workers who may agree, are likely protected and concerted activity under the NLRA.

In January, the NLRB issued a social media report that examined 14 recent cases of social media policy for businesses. The report held that policies should include a clear disclaimer that they are not designed or intended to chill or prevent protected activity, and social media use restrictions should be specific enough to not be reasonably interpreted as restricting protected activity. Overly broad policies violate the law regardless of whether the employer has actually taken action against an employee for violating the policy. Employers found to have violated the NLRA may be required to rescind discipline or reinstate terminated employees, to post public notices of violations, and to revise their policies.

Developing or refining smart, savvy social media policies for your business can be tricky, but understanding policies and where employers need to protect themselves is a pivotal first step to empowering your organization and its employees.

Jennifer England is an attorney in the Employment Law Services Department of Mountain States Employers Council, advising and training members on the myriad of employment law issues. Jennifer has made presentations to members of MSEC and the Denver Chamber of Commerce on Social Media in the Workplace.
 

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