This week, we learned of yet another firing of an employee for ranting about the customers he had to tolerate at his local Starbucks on a social media site. Starbucks isn’t the only company coping with the use of social media by its staff, and this is one of those thorny issues where the technology is clearly moving at net speed, and the law is slowly coming around at its usual snail’s pace. Organizations of all sizes are using social media tools to promote their products and services, yet their efforts are sometimes thwarted by employees airing the firm’s dirty laundry publicly via the use of these same sites. Tony Bingham, President of ASTD National, commented recently that just like the old 38 Special song-social media policies should be written so as to “Hold On Loosely, but don't let go…”. A very appropriate metaphor for how organizations can balance protecting their brands, yet not discourage the use of- or even worse, infringe on the free-speech rights of their employees. While we all await the long-arm of the law to clear things up, there are three major gaffes you want to avoid as an organization when crafting your social media policy.
There are many perspectives of what can and cannot be included in a well-crafted social media policy, but I’d like to review three of the major pitfalls that companies are making. First and foremost, overly-broad, vague, or policies encompassing too wide an array of behaviors are not holding up in courts or in National Labor Relations Board (NLRB) decisions. In one recent example of this, an employee was terminated from a hospital for “talking badly about the hospital”- which was, of course, against the institution’s social media policy (see pg. 19 of the NLRB GC’s Memo here). Without a standard or clear definition as to what “talking bad about” or “criticizing” the organization means- the NLRB is erring on the side of employees in these cases. Any social media policy that does not clearly define these broad terms or limit their definition in a way that excludes protected National Labor Relations Act (NLRA) Section 7 activity will likely not pass the proverbial “smell test”, and should be corrected immediately.
Secondly, policies that infringe on employees right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” should be corrected. These behaviors include employees discussing amongst themselves their wages, work hours, other terms and conditions of their employment, up to and including criticisms by coworkers of the company’s performance and are protected under section 7 of the NLRA. While a company’s Pavlovian response might be to quickly terminate an employee for criticizing the organization in a social media forum, they would be well advised to review their social media policy with counsel before doing so to ensure the employee’s rights will not be violated as a result. A well-crafted policy is especially conscious of these rights, and is worded in accordance with its principle.
Lastly, social media policies should reflect the culture and values of an organization, and be written so as to not alienate the very talent companies are attempting to recruit via these same social media channels! Many of the policies we are encountering in the workplace are so hideously written that a talented, high-potential candidate might read them and run in the opposite direction. Gen Y now entering the workforce has grown up with this technology, and even developed a very powerful, vast and carefully crafted network of resources they can tap into when faced with a challenge. If your employer brand is communicating how innovative your organization is, and these high-potential candidates are arriving at your workplace and finding your policy overly restrictive of their ability to draw upon these resources―you are creating a huge disconnect with the image you are working so hard to cultivate. Policies written in legalese by your legal team, and not developed in conjunction with your Human Resources leader to be aligned with the organization’s talent management strategy will keep you out of the courtroom but may also keep you out of a high-potential market talent market.
Alex is a co-founder and Managing Member of Collabor8 Learning, LLC, an instructional design and performance management consultancy. His firm collaborates with organizations to enhance the way they develop and train their people. To learn more about Collabor8 Learning, click here.