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Social Media and the Workplace b y G E O R G E H . P I K E

G iven th e all-encom passing n a tu r e of th e i n te r n e t in o u r lives, i t is e a sy to for­

g e t t h a t i t is a c o m p a ra tiv e ly new p h en o m en o n . W hile its u n d e r p in ­ n in g s d a te back to th e 1960s as a com m unication, ecom m erce, and social m ed ia platform , for th e m ost p a r t th e i n te r n e t is b a re ly o u t of its te e n s . T he social m e d ia e n v i­ r o n m e n t is even younger. Some e a rly a d o p te rs d a te b ack to th e m id -1 9 9 0 s, b u t a s a c u ltu ra l p h e ­ n o m en o n , social m ed ia is b a re ly a few y e a r s old.

In th o se few y e a rs, m an y people a n d groups, b u t b u sin e ss o rg an iza­ tio n s in p a rtic u la r, h a v e developed a s u b s ta n tia l love/hate relatio n sh ip w ith social m edia. T here is no doubt t h a t social m e d ia w as q u ickly re c ­ ognized, th e n adopted an d exploited

as a m a rk e tin g tool by b u sin e ss or­ g a n iz a tio n s. Facebook L ikes, v .ra l video h its, and T w itter followers are now m e a su re s of b u sin e ss m a r k e t­ ing success as m uch as N ielsen r a t ­

ing s an d Q Scores. However, social m ed ia does n ot ju s t im p act b u sin e s­ se s th ro u g h m a rk e tin g , i t does so th ro u g h t h e ir em ployees as well.

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Library Advocacy at the Polls b y B R A N D I S C A R D I L L I I

■ W hen lib ra rie s h a v e i n i t i a ­ tiv e s on t h e ir local b a llo ts, th e y d ep en d on fav o rab le re a c tio n s from voters for th e in itia tiv e s to p a ss—b u t t h a t m ean s th e y have to g et th e voting public on th e ir side before th e election. L ibraries t h a t n eed g u id a n c e c an t u r n to E veryL ibrary, th e first a n d only nonprofit lib ra ry advocacy orga­ n iz a tio n w ith th e s in g u la r goal of secu rin g fu n d in g for lib ra rie s by h elping th em achieve positive election outcomes.

F o u n d ed in 2012 by J o h n C h ra stk a , E v ery L ib rary collects

continued on page 26 > ■ ■ ■ ■ ■ ■ ■ n M H H H M a n n R H H H n n B M B n n n H i

The Ins and Outs of CCC b y C O R I L E E C H R I S T O U

■ C opyright a n d its enforcem ent h a v e c h a lle n g e d society for cen ­ tu rie s , ev er since th e in v e m io n of th e p r in tin g p ress. W ith th e a d ­ v e n t o f th e in te rn e t a n d its m a s ­ sive a m o u n t of a v a ila b le c o n ten t, a floodgate h a s been breached th a t U .S. a n d in te r n a tio n a l co p y rig h t law s are atte m p tin g to stanch. B ut th ese law s a re severely ha m p e re d by th e ea sy access to a n d w id e­

sp re a d s h a rin g of d ig ita l m a te r i­ als w orldw ide.

C o p y rig h t w a sn ’t e a sy to u n ­ d e rs ta n d , m u ch le ss force com pli­ ance to, in its e a rly in c a rn a tio n s either. B ritish P a rlia m e n t passed th e firs t co p y rig h t law, th e L i­ cen sin g of th e P re s s A ct 1662, to p re v e n t p o te n tia l a b u se s e n ­ g e n d e re d by th e p r in tin g p ress. However, no p r in tin g p re ss could be s e t u p w ith o u t th e ap p ro v a l of

continued on page 28 >-

Social Media and the Workplace -< c o n tin u e d from p a g e 1

And b u sin ess organizations are having a lot more difficulty in this arena, as em ployees are moving away from the watercooler and on­ to Twitter and Facebook to talk about their jobs.

Office Policy and Office Politics

Given th a t m any people spend h a lf (or more) o f their waking lives at work, it is inevitable that in using social m edia to share inform ation about their personal lives, they will share information about their work lives as well. Sometimes that work information is less than flattering. Gripes about the boss, a co-worker, a customer, an office policy, and office politics can and do invade social media posts. When those comments come to the attention of the compa­ ny, they can and do often result in a range of disciplinary m easures, up to and including termination.

Should people be term inated for using social media to air the kinds of gripes that once were limited to con­ versations around the watercooler? To be clear, th e issu e has not been the m isuse of company resources by posting th e com m ents on company equipm ent during company time. T hese are posts made after-hours on personal com puters or mobile devices. Similarly, th ese posts are not found by com pany m onitoring o f em ployees’ after-hours activities. Typically, th e posts are either re­ ported by others to the company or found w hen the company is search­ ing for information about itself, usu­ ally for purposes of marketing, m es­ saging, or m onitoring the internet for m isuse of its intellectual property (trademarks and copyrights, etc.).

Social M edia P olicies Employers have begun to respond

by introducing social media policies in their em ployee handbooks. The policies outline what they consider to be acceptable practices by their em­ ployees when posting on social media about the employer. While the poli­ cies can and do vary, they frequently include restrictions on the disclosure of confidential and proprietary infor­ mation; linking to the company web­

site; the use of the company’s logos or brands; and the use of profane, de­ famatory, or embarrassing language, particularly when referencing cus­ tomers, clients, or managers.

Em ployees do have some legal protections for their after-hours social media activities. Privacy law protects against active m onitoring of em ployees in the absence of a specific purpose, such as investigat­ ing a theft allegation or a disability claim. Recently, the federal N ation­ al Labor R elations Board (NLRB) has become a force in the investiga­ tion of em ployee term ination and discipline claims arising from social media posts.

The NLRB’s traditional mandate has been to look into complaints re­ lated to union activities, including union elections and m onitoring, collective bargaining issu es, and workplace compliance. However, the legal authority under which it operates is not specifically lim ited to union activities. Section 7 o f the N ational Labor R elations Act (law .comell.edu/uscode/text/29/157) pro­ vides for the right o f em ployees to participate in “self-organization.” In­ cluded is the right of all employees— union and nonunion alike—to “en­ gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Mutual Aid or Protection It is through th is language that

the NLRB has begun to investigate and often sanction employment pol­ icies th at cover social m edia posts involving workplace issu es. Its po­ sition is th at the ability to discuss workplace issu es in th e social m e­ dia context is part of the “concerted activities” that workers are allowed to engage in for their “m utual aid or protection.” While not all workplace discussions (social m edia or other­ wise) m ight fall w ithin the scope of m utual aid or protection, talking about the term s and conditions of em ploym ent is included. This can entail talk in g about w ages, hours, workplace conditions (including co­ workers and supervisors), employ­ m ent policies and practices, and in some cases, discussions of custom ­ ers or clients. The reasoning behind th is rule is th a t em ployees need to be able to talk about th ese activi­ ties as they identify th e need for collective bargaining, m utual aid,

or mutual protection. Any employer action that would restrict or “chill” these discussions is considered an unfair labor practice.

In a spate of recent decisions, th e NLRB found a number of em ­ ployers’ social m edia policies to be illegal. A recent case examined the Kroger grocery store chain’s online com m unications policy, which had a provision again st any u se “w ith ­ out perm ission” of Kroger’s in te l­ lectual property a ssets, including copyrights, trademarks, and trade se­ crets (The Kroger Co. o f M ichigan u. A nita Granger, op.bna.com/dlrcases .nsf/id/ldue-9jfm98/$File/Kroger% 20ALJD.pdf). An NLRB judge struck down that provision, saying that be­ cause trademarks and copyrighted works m ay be used as part o f dis­ cussions of the terms and conditions of work, requiring permission from the employer w as the equivalent of requiring perm ission to engage in “concerted activities” for mutual aid, a violation of Section 7.

Inappropriate D iscu ssion s In the Triple Play Sports Bar and

Grille case (nlrb.gov/case/34-CA-012 915), the NLRB ruled on the employ­ er’s internet/blogging policy, which stated that employees could be dis­ ciplined for “engaging in inappropri­ ate discussions about the company, m anagem ent and/or co-workers.” One former and two current employ­ ees engaged in a rather heated Face- book exchange over a tax-withhold­ ing problem th at had cropped up. The discussion included a few exple­ tives and language that questioned the employer’s competence. The em­ ployer learned of the Facebook ex­ change from another worker and fired the two employees. The NLRB, however, said th at w hen a d iscus­ sion includes issues related to a labor controversy, it is protected even in the face of “disloyal disparagement of the employer.” The NLRB also found that the policy’s restriction on “inappropriate discussions” was too broad, as employees could reasonably believe that the employer might con­ sider a discussion of terms of employ­ ment inappropriate.

Other cases had similar decisions, indicating th at broad restrictions, however well-intentioned, were not permitted if they could reasonably be interpreted to restrict an employee’s ability to collectively discuss terms

and conditions of employment. U n ­ der th a t rule, a broad prohibition against the discussion o f “sensitive Company information” was unlawful because it covered protected informa­ tion such as wages and terms of em­ ployment in addition to the intended trade secrets. Restrictions on posts that were insubordinate, violated a no-gossip policy, or could negatively affect the business were also struck down in the absence of any policy language that protected discussions of terms of employment.

It seems that the broad language of many social media policies is what concerns the NLRB. The Landry’s, Inc. case (nlrb.gov/case/32-CA-118 213) involved a policy th at urges em ployees not to post inform ation th a t could “lead to morale issu es in the workplace.” The NLRB ruled against the policy because it focused on the reasons for the restriction rather than on the restriction itself. Under these circumstances, the NL­ RB found that an employee who read the policy would not reasonably con­ clude that it restricted the discus­ sion of employment terms, but only the “m anner” in which the d iscu s­ sion w as held.

A State o f Flux These cases illustrate an area of

law th at is still in a state o f flux, along with the recognition that em ­ ployees do have a right to use their Facebook and Twitter feeds as re­ placem ents for th e watercooler. While those rights are not unlim it­ ed, employers need to carefully craft social m edia policies th at respect the righ ts’ existence. This w ill be­ come increasingly critical as Bring Your Own Device (BYOD) and Bring Your Own Technology (BYOT) trends become more prevalent. Both of these trends are leading to the increasing use of em ployee-owned technology in the workplace, further blurring the lin es betw een work and non­ work worlds. As those lines become increasingly blurry, the need for and role of employee social media- and technology-use policies become more sharply focused.

George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School o f Law. Send your comments about this column to itletters® infotoday.com.

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