Legal interpretations on corporate social-media policies are in flux. Here's what you need to know to keep your practice safe.
In light of recent court cases surrounding “Facebook firings,” many employers, including physicians, have been grappling with how to structure a social media policy for their own offices.
The National Labor Relations Board (NLRB), whose purview covers both union and nonunion workplaces, has declared many common social media policies illegal. So you should be aware of the NLRB guidelines and how they could affect your office from a human resources perspective.
Section 7 (“Rights of Employees”) of the National Labor Relations Act (NLRA) has sparked plenty of questions regarding employees’ social media use today. It says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ” (emphasis added). And the NLRB defines concerted as “two or more employees acting together to improve wages or working conditions . . . .”
What this means for us today is that employees are allowed to talk about their wages, benefits, and working conditions so long as the discussion is part of an effort to improve workplace conditions as a whole. They cannot use reckless or malicious behavior, which includes making threats or breaking specific confidentiality standards, but otherwise their right to converse about working conditions is protected - even when those conversations take place on social-media sites.
Therefore, whether or not these so-called Facebook firings are determined to be lawful will depend on whether the social media activity in question is deemed to have been undertaken for the purpose of improving employees’ benefits. As you can imagine, this is somewhat of a gray area.
To help you avoid wandering into such a potentially messy situation with your own employees, I suggest you create a social media policy for your office. Start by looking at the NLRB’s sample policy to get a sense of what to include and how to phrase the guidelines. Because of the obvious legal implications, don’t share the new policy with your staff until you’ve had a lawyer review it to make sure it’s clearly written and in line with the NLRB’s guidelines.
It’s important that your social media policy is as specific as possible when it comes to confidentiality clauses; you must ensure that your employees’ rights (protected under Section 7 of the NLRA) remain intact. For example, you may prohibit them from sharing trade secrets, but not from talking about wages and workplace conditions.
Avoid using broad “courtesy clauses” in the policy as well - that is, you can’t bar your employees’ use of colorful language and distasteful criticism. Employees have the right to publicly criticize their employer as part of a concerted activity, even if it’s done in poor taste. On the other hand, employers are allowed to prohibit harassment, violence, and abuse of any kind. The key is to write the policy in a sufficiently narrow way that it focuses on those specific types of violations.
And finally, while this last suggestion isn’t something you should include in your social media policy, it’s still important to keep in mind: Be selective about whom you connect with online. Friending your employees, subordinates, and patients on Facebook, for example, makes it more likely that you will cross the line from professional interactions into more personal ones - which can be risky. Even so, while your employees must make their own decisions in this regard, it can’t hurt to encourage them to use common sense in this area. After all, to a certain extent your employees’ words and actions will reflect on you and your practice.