Director of Business Development for the UK & Europe, Avitus Group

Avitus Group’s Workplace Social Media Policy Best Practices Guide recommends specific content for employee handbooks to avoid falling to the too-wide-sweeping-policies trap, outlines multiple case studies to guide employers on the difference between gripes and legal expression of concerns, and encourages businesses to know the law before firing employees for social media behavior.

NLRB fact sheet on social media

Read the full National Labor Relations Act, here

The Employee Handbook and Social Media in the United States: Important Best PracticesThe Employee Handbook and Social Media in the United States: Important Best Practices

Today, use of social media sites, Facebook, Twitter, YouTube, and more, has expanded to a platform for any employee to share thoughts on his or her workplace.

Some employees write work-related social media messages because they are concerned that an aspect of their workplace environment might not be legal or possibly dangerous. Others hit the keyboard in the heat of the moment when they are upset about varying work-related issues and feel the need to vent on a public platform.

This private use of social media can cross the line into professional social media misconduct, and end up potentially being harmful to a business. However, this line is not always clear. To protect their business interests, management often takes steps, usually via an employee handbook, to develop policy aimed at avoiding malicious defamation. With that being said, this must be accomplished by following best practices and staying in compliance with the law.

The ultimate authority over employee and employer rights and actions, including what is detailed in an employee handbook, is the federal law set by the 1935 National Labor Relations Act (NLRA). The National Labor Relations Board holds authority to enforce the NLRA, and its jurisdiction extends to most U.S. workplaces. Board decisions have gone through the courts and up to the U.S. Supreme court, establishing nationwide court precedents.

The problem comes when a business’s rules and company-imposed consequences start walking on what the NLRB considers ‘protected concerted activity.’ By definition, this protects the rights of employees to use social media to ‘question, disagree, and complain…regarding aspects of employment terms and conditions, including wages and hours.’

Therefore, when an employee begins to disparage a company or other employees, it can be unclear what is and is not protected under the NLRB rules. Best practices on social media policies really started to become an issue starting in 2010, when employers began looking for guidance in these uncharted waters. In response, the NLRB general counsel issued a guidance on social media, which can be found in the sidebar.

However, not all employers are aware of the law and unjustly fire or discipline employees for social media behavior. This lack of knowledge has ended up costing the employer. In 2014 alone, the NLRB General Counsel sought $43.8 million in back pay as monetary remedies for the employees who were illegally fired after participating in protected activities.

Without guidance through the sections of the NLRA, such as that provided by Avitus Group, employers often feel like they are blindly navigating a rocky road of questions and legal traps. Employers need to be able to understand who is making the statements, the method their employees are using to seek change, whether the concerns are legitimate or just personal gripes, and whether their handbook policies are legal or in violation of NLRA’s section 7 protected rights and activities. Becoming educated on these issues, and following best practices can save the business money and reputation.

Director of Business Development for the UK & Europe, Avitus Group

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