Because use of social media in the workplace is not going away anytime soon, it is an employer’s responsibility to ensure distribution of an up-to-date Social Networking Policy in an employee handbook.
Clients of BCN Services have access to the most up-to-date policies based on recent litigation involving discipline for social media postings that are affecting this ever-changing landscape. Below are two of the most recent landmark decisions that are shaping what is an appropriate employer response.
NLRB decisions address personal social media
The National Labor Relations Board (NLRB), an independent federal agency that enforces the Act, first began receiving complaints in its regional offices related to employer social media policies and specific instances of discipline for Facebook postings in 2010. More recently, in the fall of 2012, the board began to issue decisions in cases involving discipline for social media postings. Board decisions are significant because they establish precedent in novel cases such as these.
In the first such decision, issued on Sept. 28, 2012, the NLRB found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. The question involved whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership (which did not involve fellow employees), or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; one week later, the salesman was fired.
The board agreed with the administrative law judge hearing the case that the salesman was fired solely for the photos he posted of the Land Rover incident, which was not a planned (concerted) activity and so was not protected.
In the second decision, issued on Dec. 14, 2012, the board found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a co-worker who intended to complain to management about their work performance. In its analysis, the board majority applied settled law to the social media case and found that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act.
Be cautious not to use social media websites in hiring
BCN cautions managers responsible for hiring to not use social networking web sites to assist you in making any employment decisions, specifically in hiring.
Employers viewing their employees’ or job candidates’ social-networking web sites may open the Company to claims under the employment-discrimination statutes or your state. This is the case especially if a decision not to hire is made immediately following such viewings that the employee or job candidate claims was because of a legally protected status or activity.
If you have a current employee handbook without an updated Social Networking Policy, please notify BCN’s Human Resources Department to include that in your next handbook order. If you do not have an employee handbook, contact us to develop one for you. Lastly, please contact BCN’s Human Resources Department with any inquiries regarding social media use in the workplace.
Kate Douglass, Senior HR Generalist