Who would you rather have working at your practice or medspa—an employee who is always sneaking onto Facebook between patients or one who uses their downtime productively? How about someone who uses Twitter to blast complaints about their team members out to the public versus an employee who brings concerns to you directly?
These are easy questions to answer; unfortunately, crafting a legally enforceable company policy to remind your team about appropriate social media use is not so clear cut. You may be tempted to adapt a policy that you found online or in a colleague’s employee handbook to fit your own needs and concerns, but beware: Social media policies have become a flashpoint in labor law pertaining to employees’ rights.
If you have an existing policy or are considering one that includes wording similar to any of the following, it’s time for a review:
- “Do not discuss company, patient or employee information outside of work.”
- “Do not make any insulting, defamatory, libelous, slanderous or discriminatory comments about (the Employer), its patients, its employees or management online.”
- “Refrain from any action that would harm persons or property, or cause damage to the Company’s business or reputation.”
The National Labor Relations Board (NLRB), a government agency that upholds laws protecting employees’ rights to discuss their wages and working conditions in an attempt to improve them, has struck each of these policies down as unenforceable. The key issue is they all include vague or overly broad language.
Improperly written social media and internet policies can lead to trouble for employers, regardless of whether or not they enforce the written policy. This is because the NLRB has determined that vague or overly broad wording in these policies can restrict—or have a “chilling” effect on—employees’ protected rights, including the right to discuss wages and work conditions. Keep in mind: When reviewing these types of policies, the NLRB considers both the literal wording and how one might interpret the words used.
Here’s the social media policy that recently got Chipotle Mexican Grill in trouble, even though it had already been replaced: “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
An NLRB judge ruled that the word “confidential” in this policy was “vague and subject to interpretation,” because employees could interpret it as dissuasion from exercising their rights to discuss work conditions.
In the same case, the NLRB also struck down this policy: “You may not make disparaging, false, misleading, harassing or discriminator[y] statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
Here you can see more clearly how an employee might have interpreted the policy as dissuasion from speaking negatively about their boss or working conditions.
Photo copyright Getty Images.
In 2015, an NLRB judge found T-Mobile guilty of multiple, nationwide workers’ rights violations thanks to its policies that attempted to regulate employee communication that might happen offline or on social media. The NLRB ruled that the company’s handbook included overly broad confidentiality policies, as well as policies barring or discouraging employees from making negative comments about the company or its employees.
Over the past several years, the NLRB has been getting stricter and stricter on these issues, and it’s not just big companies like Chipotle and T-Mobile that they’re after. The agency has struck down policies from practices with as few as two employees.
Typically, the NLRB will only get involved with your practice or medspa if an employee brings a complaint against you. As part of its investigation, it will review all of your office policies as it considers the case, and impose “remedies”—which may include back pay, expunging information from an employee’s personnel file or a posted notice of unfair labor practices—if it finds objectionable policies or practices.
Let’s be clear: Labor protection, like that enforced by the NLRB, does not grant your team the right to waste time on Facebook during work hours or maliciously slander you on Twitter; and you do need a social media policy to let employees know they cannot post patient pictures without consent, reveal patient information or harass one another. However, practice owners and managers must walk a fine line when considering what policies to put in place and how broadly those policies can be interpreted.
What Is Allowed?
Creating a legally enforceable policy requires a lot of specific HR and legal knowledge, not to mention time to keep up with recent NLRB findings. Therefore, it is best to use a policy that is written or at least reviewed by an HR expert or attorney.
Until you get your professionally written policy, here are some general guidelines:
- Do not forbid employees from saying negative things about your company online. This overly broad policy is seen as chilling to employees’ rights to talk about working conditions.
- Your policy can prevent employees from egregiously attacking your business. Acting maliciously is not protected by the NLRB.
- Do not include a blanket policy that prohibits non-business use of company computers or email accounts. Employees using company email to discuss work problems (especially while on break time) can and has been considered protected activity.
- Your policy can regulate inappropriate or unlawful uses of company computers and email. (For example, protected activity does not include using a company computer or email system to harass another employee.)
- Finally, your policy can and should state that it is not your intention to infringe upon employee rights, and that none of your policies should be viewed as doing so.
Following these guidelines will help ensure that your employee handbook is your practice’s best defense against employee complaints and disputes —not “Exhibit A” for your employee’s attorney.
Paul Edwards is the CEO and co-founder of CEDR HR Solutions, a provider of individually customized employee handbooks and HR services for healthcare employers of all specialties. He is an HR expert with 25 years of management experience and the author of the blog HR Base Camp. Contact him at 602.476.1418, firstname.lastname@example.org.
Photo copyright Getty Images.