A Legal Look at Social Media Privacy in the Workplace

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September 30, 2011 – The end of the week is usually filled with news on the latest features and changes to our favorite social media platforms. You’d think Facebook’s Timeline would be taking center stage with its impending Monday release, but we’ve got a new more serious concern on our radar.

A recent meeting of the National Labor Relations Board (NLRB) generated a report focused on employers’ social media policies. The report included 14 specific instances of both acceptable and unacceptable cases where social media policies were the focus of employment-related litigation.

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Whether or not your company has a social media policy, this is some food for thought when it comes to dealing with employee conduct on Facebook, Twitter, and other social networks. These cases focused more on what was said and how, rather than limiting employee access to social media in the workplace.

The gist of the NLRB’s position on social media conduct is that for an employer to use social media evidence as a basis for employee termination or reprimand, they must first determine the true nature of the content and how it was transmitted.

The content is the actual statements being distributed by the employee. Social media activity is considered “protected” if it’s a statement about wages, hours or working conditions. The other key element is whether the content is “concerted” meaning the statements were engaged in with or on the authority of other employees.

In plain English – employees can discuss concerns about wages, hours or working conditions with other employees on social media, so long as it’s not a personal attack, malicious or untrue.

The method of transmission doesn’t necessarily mean the social network you’re posting to, it means whom you are directing the message to. If you’re sending a private message to other employees only or to the company on behalf of yourself and other employees, it’s acceptable. Posting on your public Facebook wall about how your boss gets on your nerves because he likes to talk about his awesome golf game is not necessarily protected content.

You can access the full report at the National Labor Relations Board and read detailed reviews of cases that may concern your own business at some point in time. If your business doesn’t already have a social media policy, you may want to consider developing one in light of this report. On Monday we’ll have more information for you on finding the right policies for your business’ social media rules.

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