Managing Employees in a Digital World

ShaynaBalchFisher&PhillipsBy Shayna Balch
Partner, Fisher & Phillips, LLC

Like the standard cup of morning coffee, just about everyone in the workforce is now a frequent user of social media sites, including personal blogs, Facebook and Twitter. As we’ve seen a number of times, online activity by employees can be very problematic. However, with some proper planning and an in-depth understanding of current social media laws, employers can stay one step ahead when trying to navigate the treacherous digital landscape.

1. Look at the complete picture
There are many problems that can arise from employee activity online, including using the Internet to publicly criticize the company or disclose confidential information. The key to curbing this behavior is to look at how the content is affecting you, your business and your customers and then take the necessary and legal steps to prevent it from going any further.

2. Have a social media policy
Having a policy is a critical step to enable you to act upon improper online activity by employees. Without a written policy in place, it will be harder to justify actions taken against employees who are involved in inappropriate, but legal, behavior online, especially where the activity is done during off work-hours.

3. Details matter most
Define the company’s expectations regarding social media very clearly in company’s handbook and provide a non-exclusive list of the types of social media websites that should be considered. You should also include some specific rules that pertain to trademarks, the condoning/promotion of illegal activity and the rules surrounding the use of social media while on work time or company equipment.

4. Know the law
The National Labor Relations Board has taken the position that some uses of social media are protected concerted activity, and that employer policies may violate employee rights under the National Labor Relations Act — even when the employees are non-unionized. Employee use of social media to organize, discuss workplace terms and conditions, discuss pay/benefits, for “whistleblowing,” etc. may be protected. For example, an employee posting online that she is forced to work unpaid overtime or requesting that other employees work together to solve an HR problem, may all be activity that is protected. So, beware of overbroad policies.

5. Investigate and document everything
Ask yourself the following questions before taking action based on social media postings. What are the facts? Is the content protected? Is action legally required? If the employee has violated the law or disclosed information that could subject the company to liability, it might be time to call your attorney.

If the employee has not broken the law, but violated company policy, it is always important to handle the situation with the highest level of professionalism. It is also important to impose any discipline in a consistent and non-discriminatory and non-retaliatory manner.

Shayna Balch is a partner at Fisher & Phillips LLP in Phoenix. She represents employers in employment and labor litigation matters before federal and state courts, as well as before administrative agencies. She can be reached at sbalch@laborlawyers.com.

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