Legal

Another Reason Not to Ban Social Media on Company Time (Hint: It’s the NLRB)

By Staff Report

Nov. 20, 2012

I’ve written before about the practical problems employers face when trying to ban employees from accessing social media at work.

Last week, an National Labor Relations Board administrative law judge provided us another reason for employers not to implement workplace bans on social media—such a ban might be an unlawful infringement on employees’ rights to engage in protected concerted activity.

In Dish Network [pdf], the ALJ considered the following policy in the company’s employee handbook:

Unless you are specifically authorized to do so, you may not … Participate in these activities [Social Media—blogs, forums, wikis, social and professional networks] with DISH Network resources and/or on Company time.

The ALJ struck down the policy as an unreasonable restraint on the right of employees to engage in protected concerted activity:

The Social Media policy is unlawful…. [T]he policy banned employees from engaging in negative electronic discussion during “Company time.” The Board has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.I’ve written before about the logistical problems of workplace social media bans.

If you are going to consider banning social media in your workplace, the practical reasons far outweigh the legal issues (Dish Network notwithstanding). I call it the iPhone-ification of the American workforce. If most of your employees can take their smartphones out of their pockets to circumvent your policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?

Instead of legislating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

When dealing with employment concerns, there are legal issues and there are business issues. Decisions cannot be made without considering both, and sometimes one must trump the other. In this case the legal issue and the business issue happen to jive. The legal issue, however, remains in flux, as the NLRB continues to grapple with the role of technology in the 21st century workplace. The business issue, though, dictates the employers think long and hard about implementing a policy they will struggle to enforce.

The blog is taking the rest of the week off. I’ll be back on Nov. 26 with fresh content. In the meantime, enjoy your holiday, and take a moment to say thank you to that and those for which you are grateful.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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