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Posted: August 26, 2011

Too much social media at work?

When it comes to discipline, employers have to be careful not to cross the line

Troy Rackham, John Balitis and Carrie Pixler-Ryerson

Because the law still is evolving, many employers are fearful of disciplining and terminating their employees for conduct on social networking sites. Although this apprehension is understandable, it need not paralyze employers from protecting their legitimate business interests with an appropriate social networking policy.

Recently, the National Labor Relations Board (NLRB) filed an unfair labor practice charge against American Medical Response of Connecticut for terminating an employee who posted insulting personal remarks about her supervisor on her Facebook page. Although the parties settled the charge before the hearing, the NLRB has made it clear that it intends to aggressively prosecute employers that discipline employees for this type of behavior.

Because the NLRB's authority reaches both unionized and non-unionized employers, the potential ramifications to employers is widespread.

Further, although plenty of gray area still exists regarding what type of online behavior an employer can prohibit, there is certain employee conduct that employers can forbid in order to protect themselves against unscrupulous employee activity on social networking sites. There are common circumstances of an employee's online activity that generally remain lawful grounds for discipline.

The clearest circumstance is an employee's use of social media while on the clock. An employee who engages in online activity for personal reasons at work likely is failing to be productive for the employer and such conduct may lead to discipline up to and including termination.

If the employer intends to prohibit personal use of social media while an employee is on the job, the employer should: (1) implement and distribute a written policy that prohibits personal social networking while at work or while working; (2) ensure that it enforces this policy consistently with all employees so as to avoid claims of discrimination; and (3) have documentation to support the employer's belief that the employee engaged in such misbehavior at work. If an employee's job responsibilities require him to be online, the employer should consider appropriate measures, such as whether to block access to social media sites.

Another clear circumstance where an employer can discipline an employee for her use of social media is when the employer's confidential and proprietary information is disclosed through the employee's social network, regardless of whether such online activity takes place outside of the office and outside of work hours.

So that the employee is clear about how she may, if at all, discuss work through social media, the employer should take some basic precautions: (1) have the employee execute an enforceable contract that prohibits the employee's use of or disclosure of confidential and proprietary information; (2) require all similarly situated employees to execute the same contract; (3) enforce the breaches of such contract consistently with all employees who have executed it so as to avoid claims of discrimination; and (4) have evidence to support the employer's belief that the employee engaged in such misbehavior at work.

While there are clearly social networking activities that an employer can prohibit, it must be careful not to cross the line. Under the National Labor Relations Act, employees are entitled to engage in "protected concerted activities," which include discussing the terms and conditions of their work between two or more employees.

An overly broad social networking policy may violate the Act if it interferes with employees' right to engage in such protected activity. Consequently, it is advisable for an employer to have its social media policy reviewed by counsel and a human resources professional to ensure compliance with the applicable law and practice standards.
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Troy Rackham holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer. Selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. His practice includes employment and civil rights law, legal and medical malpractice and other forms of complex litigation. Reach Mr. Rackham at trackham@fclaw.com .

John Balitis practices in the labor and employment area with Fennemore Craig representing employers in arbitration, litigation and administrative proceedings.  He can be reached at jbalitis@fclaw.com mail to: jbalitis@fclaw.com .

Carrie Pixler-Ryerson practices in the area of appeals as well as in labor and employment at Fennemore Craig.  She can be reached at cryerson@fclaw.com  mail to: cryerson@fclaw.com.

 

 

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