Tuesday, January 22, 2013

NLRB rules that employers must be very careful with (personal) social media and blogging policies


I have long been concerned about the idea of “conflict of interest” between Internet speech and the workplace, and since about 2006 many workplace counselors have advised people about watching how their social media activity can affect their “online reputation” and employment prospects.

But Steven Greenhouse has a front page story in the New York Times today (Tuesday, January 22, 2013), “Even if it enrages your boss, social net speech is protected”, link here

The National Labor Relations Board has ruled that even private employers (even given “employment at will”) may not make overbroad rules that control what associates may say on their own social media accounts.  They can make rules that are more specific, as to revealing particular trade secrets, or making deliberate or offensive personal attacks on other employees or customers.
    
The article discusses a case in Buffalo, NY where a Hispanics United, a non-profit social services agency, fired Mariana Cole-Rivera and four other co-workers for making generalized complaints on Facebook about the way workload in the office was shared. They were reinstated after 3-1 vote.  

The ruling does not seem to be concerned about whether a person’s social media account is marked as public (“everyone”) or restricted to followers or friends’ lists.  In recent months, it has become more common to find Twitter logs are restricted to followers, and Facebook posts and walls are restricted to friends.  But many people, myself included, leave everything public because we don’t discuss overly personal matters in social media.

The ruling did not seem to have been posted yet at the NLRB website.

Workplace advisors in the past have warned that depending on privacy settings to control distribution of posts can be unreliable, as posts, like emails, often get forwarded.

As I have discussed on my “Job Market” blog (Jan. 5, 2013), I actually transferred and relocated after a corporate merger to avoid what I thought was a “conflict of interest” over the military (as a customer) and “gay rights”, back in 1997.  But I was going to have published a book, which could bring financial gain or public recognition or “notoriety”.   “Getting published” was seen as a major undertaking and event in those days, even as self-publishing was changing the rules.  Today’s social media world expects that most posts (about specific companies or specific people) will be seen by a limited list of people and not become general public knowledge, although in fact many anomalies or “scandals” start with social media.  In practice, I have found that Twitter can be pretty effective (more than Facebook) in making a particular problem public even if one has relatively few followers.   

Employment attorney Audrey Mross discusses “Facebook in the Workplace” in a posting eleven months ago.

Employers wonder why they can’t fire employees who “bash the boss” on social media.  The video says that the day is coming when companies will need a social media policy. 

I’ve related here how I was banned from a particular school when substitute teaching because of a posting (a fictitious screenplay) on my own website (July 27, 2007).  I actually felt pressured to resign from the job but was later reinstated, but could not return to that school.  It’s possible that this action (by the school) might not have stood up to legal challenge.  

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