Social Media Use and the NLRB Again

by Michael Haberman on November 26, 2012 · 2 comments


Trying to control an employee’s use of social media is an illusion, like “tilting at windmills”

The attempts to control social media use in the workplace by employees is like “tilting at windmills.” Control is not really something you have and the NLRB is making it more difficult with every decision they make. So here is another lesson is social media use and the NLRB, again.

The NLRB decision

The Dish Network was handed multiple decisions by an Administrative Law Judge (ALJ), with one decision specifically pointed at the company’s policy on the use of social media by employees. The decision of the ALJ said:

The Social Media policy is unlawful on two grounds. First, it banned employees from making ‘disparaging or defamatory comments about DISH Network. The Board has held that analogous electronic limitations on negative commentary violated the Act. See, e.g., Costco Wholesale Corp., 358 NLRB No. 106, slip op. at 2 (“statements posted electronically . . . that damage the Company.”); Knauz BMW, 358 NLRB No. 164 (2012) (‘courtesy rule,’ which prohibited ‘disrespectful’ conduct and ‘language which injures the image or reputation of the 20 Dealership.’). Second, the policy banned employees from engaging in negative electronic discussion during ‘Company time’. The Board has found that equivalent rules, which ban union activities during ‘Company time’ are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.”

I wrote about the first objection in Requiring Employees to be Courteous Is Ruled Unlawful. I will let you refer to that post for the particulars, but it had to do with an employee’s use of Facebook. The second objection arises from an improper attempt to restrict the time an employee can use social media by using the term “company time.” The NLRB and the ALJ pointed out that an employer cannot restrict an employee’s activity during “non-working” time even though that non-working time is spent on company property, as happens during breaks and lunches. The ALJ said that the term “company time” implies the time the employee enters the workplace until he leaves. The employee’s activity on breaks and lunches is protected under Section 7 of the National Labor Relations Act if that employee were to engage in “protected, concerted activity.” Using social media could be a method or tool of that protected, concerted activity and thus putting an outright ban on its use is illegal.

Misdirected control

My friend, attorney Jon Hyman, thinks that employers are misdirected in trying to control an employee’s social media usage, even at work time. I agree and thus my allusion to tilting at windmills. Any control you think you may have is an illusion. With the fact that many of your employees have smart phones, through which they can interact with social media, your attempt to control them is useless. The outdated policies found in many handbooks assumed accessing social media sites through the company computer. That is no longer a valid assumption.

Attend to productivity

Jon and I both agree that an employer needs to focus on the outcome of an activity, or in this case the lack of outcome. Don’t pay attention to what the employee is doing, but rather what they are not doing and what they are not doing is getting their work done if they spend too much time on social media. As Jon says “If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem.” Of course that will require that you have records to address the performance issue and a record of any discussion on the issue. So do that documentation!

Trying to draft a proper social media policy is difficult as demonstrated in my post entitled Social Media Policy Mess So our efforts may be better spent dealing with performance issues. You are bound to be more successful and the NLRB cannot shoot you down.

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{ 1 comment… read it below or add one }

silver account December 9, 2012 at 11:11 am

Even so, you still need to exert some control over how these sites are used. You can’t just give employees free rein and hope they’ll all exercise common sense. And you can’t, in all fairness, blame them for violating rules that don’t officially exist. You need a social networking policy that explicitly lays out what is and isn’t permissible, both on the company’s network and outside of it if they’re presenting themselves as representatives of the company.


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