Yesterday’s Advisor covered the first four tentacles of the Social Media Octopus. Today, four more tentacles plus an introduction to the all-HR-in-one-place website, HR.BLR.com®.
The eight tentacles come from a recent BLR/HRHero-sponsored webinar featuring Patricia Trainor, JD, and Stephen Bruce, PhD.
Attorney Trainor is BLR’s Senior Managing Editor, HR; Bruce is editor of the HR Daily Advisor.
[Go here for tentacles 1 to 4.]
Tentacle 5—Inappropriate/ Negative Actions Toward the Employer
Release of “trade secrets” and other proprietary data is a major worry for many employers. Remember, you have to treat these data as secret yourself. Some courts have determined that information that is available to the public through Internet searches and other means isn’t protected.
Also, you may want to revise preemployment agreements regarding trade secrets and proprietary information such as customer lists.
Put in your policy, and have employees sign, an agreement concerning company equipment, company accounts, and company information.
What about badmouthing the company or the boss? This is a very frustrating situation because there are two legal issues that employers face when they try to restrict employees who rave and rant online:
First, there are state legal off-duty activity laws. Although these laws were generally passed to protect smokers, many of them are broadly worded and social media activity could be protected.
Along with this come NLRB issues, that is, that many discussions online are protected activity, particularly if they fall under the guise of talking about terms and conditions of employment.
Tentacle #6—NLRB Issues
After lots of guidance, the NLRB issued its first decision on a social media policy and not surprisingly found the policy infringed on Section 7 rights. In the case, the company’s policy prohibited statements on social media that “damage the Company, defame an individual or damage any person’s reputation.” The NLRB found that that interfered with Section 7 rights. At a minimum, that means your social media policies should state that nothing in the policy is intended to restrict employees’ rights under the NLRA.
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Tentacle #7—Privacy Issues
There is little case law addressing the monitoring by employers of employees’ social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim (whether based on the federal Constitution or state common law) when an employee voluntarily posts information on a public site.
Again, there is the issue of off-duty activity laws, and also not requiring passwords and not trying to falsely enter a website.
Tentacle 8—Ownership Issues
Finally, there’s a very interesting issue now around who owns social media data. For example, say an employee has all your customer contacts on his or her LinkedIn page? When the employee leaves your employ, can he or she take that contact information? Can you prevent it?
The social media arena is constantly changing, the law is slow to catch up, and there are many grey areas. Having a policy, signing agreements, and training users will help to minimize your exposure.
Social media and all eight of its tentacles–just one more daily challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that, whatever the agencies and courts throw in your way.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.
What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.
From NLRB guidance, it seems the best bet is to provide specific examples of the kinds of communication that are prohibited, and make sure those are examples that don’t violate the NLRB. Otherwise, the NLRB has found provisions so vague as to potentially prohibit protected activity.