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.