How much value do you place in your organization’s social media policy? Enough to go toe-to-toe with the National Labor Relations Board? Is the benefit to having such a HR policy now outweighed by the difficulty of meeting the NLRB’s lofty standards on this subject? Is compliance just too hard? Increasingly, employers are asking themselves these questions.
For several years now, the NLRB has found legal fault with a number of companies’ social media policies – even Costco’s couldn’t pass muster; overly broad and unlawful was the finding. The NLRB’s general counsel has asserted that these policies violate employees’ collective bargaining rights (“concerted activity”) to discuss, even complain about, their working conditions with co-workers. Crafting a social media policy acceptable to the NLRB has become so hard, at least one expert argues it may be time to ditch these policies and pursue other methods to achieve the same goals.
David Rubin, a partner in the Boston law firm of Nutter McClennen & Fish LLP, argues in the February 2013 issue of HR Magazine that it’s reached the point where ” . . . social networking policies may be more likely to create problems than prevent them . . . “, and that there are better ways to achieve the same aims. Rubin suggests that a well-drafted and carefully-enforced anti-harassment and confidentiality/non-disclosure policies will protect a company’s interests while avoiding the extreme scrutiny now directed by the NLRB to social media rules.
Is deserting an organization’s social media policy altogether the only way to go? Is there no hope? Don’t give up says Walmart. Its social media policy has been blessed by the NLRB. It can be done after all!
According to lawyer Brian Wassom, Chair of the Social, Mobile and Emerging Media Practice Group of Honigman Miller Schwartz and Cohn LLP, Walmart’s* success turned on its providing sufficient context (i. e., specific examples) so that employees could easily differentiate unacceptable behavior from permissible concerted activities. Costco, on the other hand, prohibited “defamation” in such a broad way that it could be read as restricting employees’ collective bargaining rights. “Context makes all the difference”, said Wassom.
Yes, there is a way – actually two, as we can see – to respect employees’ rights and protect an organization’s interests.
* Examining Walmart’s policy is enlightening. You can find it at:http://corporate.walmart.com/social-media-guidelines