The NLRB came out with its third report on Social Media Policies. Once again it said that perfectly reasonable language in social media policies violates Section 7 of the National Labor Relations Act.
My response is: So what? I don’t give a number 2.
Here’s what all the fuss is about.
Sections 7 and 8 of the National Labor Relations Act applies to both union and nonunion employers. It’s the provision that protects employees’ rights to talk to each other about wages, hours and working conditions, and decide if they want to organize into a union.
Since employees talk to each other on Facebook and Twitter about work, the NLRB has decided it should be the social media policy police. So it’s combing the nuances of social media policies everywhere to save the world from . . . something. I have no idea what.
If you want to know more about what is and isn’t allowed in a social media policy, some of my favorite legal bloggers have great analysis. See Jon Hyman’s NLB’s Position on Social Media Policies Remains a Bungled Mess, Eric B Meyer’s Want a Labor-law-legal Social Media Policy? Bookmark This, I Guess, Daniel Schwartz’s After NLRB’s Memo, Drafting Employment Policies Got Trickier, and Molly DiBianca’s The NLRB Is Laughing All the Way to the Bank.
Companies and employment lawyers don’t like the NLRB’s position. This is because it interferes with their ability to draft policies that actually tell people exactly what is and isn’t appropriate. And when they fire someone, they want to show a rule was violated to justify the decision.
Social Media Policies Don’t Work
My take is that social media policies don’t work anyway. I’m generally against solving management and employment problems with employment policies.
Policies have never stopped people from acting like idiots. And it’s perfectly legal to fire someone for acting like an idiot. It’s also just a good idea.
I also have a particular aversion to social media policies. I think they create way more problems than they prevent. Here are 8 Reasons Social Media Policies Backfire. And one of them is that the NLRB will tell you it violates employees’ Section 7 rights to talk about wages, hours and working conditions.
In its reports on social media policies, the NLRB is just repeatedly pointing out that “working conditions” cover almost everything. I also think they are grasping for relevancy as unions decline. And maybe they are even trying to protect employees’ rights to talk to each other without getting in trouble for violating the social media policy.
Do you have a telephone policy? Do you control what employees say in email?
Employees talk to each other. It’s how people work.
What employers are really afraid of is looking bad to other people, especially customers and potential customers. So when employees starting posting things online, employers freak out.
Get over it.
The best way to prevent employees from saying bad things about you is to hire the right people, give them the resources they need to do their work, and let them do it. When problems arise, deal with it based on what happened.
When you fire someone, it should be for their actions, not because they violated a policy. If employees are constantly violating policies, you have a serious management problem. And more policies won’t fix it.
Get Rid of Your Social Media Policy.
My recommendation on social media policies is: don’t have one. Or have one like Jay Shepherd’s “Be Professional,” or Zappos policy “Be real and use your best judgment.”
Will people sometimes screw up, not be professional, or lack judgment? Of course. But the truth is, policies never prevent people from acting like idiots.
So if you want to avoid NLRB scrutiny, throw out your social media policy.
Then, train people about what is and isn’t confidential information and how to protect it. Remind them that social media is a public forum, even if it doesn’t seem like it. And then trust them to do the right thing.
Stop managing to the lowest common denominator and the fear of looking bad. If you can’t handle that, then block social media, monitor everything employees do, and figure out how to draft a social media policy that complies with the NLRA. And while you’re at it, put another sign in the kitchen reminding people you are not their mother. They might be a little confused.