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Trash Your Social Media Policy - by John Sumser - HRExaminer

My take is that social media policies don’t work anyway.

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. These are the provisions that protect 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.

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  • Great item Heather! What do you think about the use of social media in recruiting……think that should still have a policy so companies and recruiters know what contacts/content belongs to who(m)?

  • SSmedstad

    Very interesting points! I have already shared this w/ some of my colleagues. We’ll be having further discussions on this topic, for sure. Thanks for writing this. 

  • Kelly – I think so!  Prior to  the “Facebook password request fiasco” I always felt that social media policies were unnecessary.  However, new legislation such as the recently passed bill in Maryland and SNOPA, will make it very important for employers to define what is a business profile/site and what is a personal profile/site when asking for or retaining usernames/passwords.  For recruiters and salespeople in particular, new legislation could have a major effect on many other existing company policies (IT, IP, confidentiality, etc.) unless there is also a clear policy that defines what constitutes a “personal” account……

  • Dan Pottiger

    Great article, Heather!  But as a community mental health center, we feel that in order to limit our liability we need a policy  for our therapists concerning the use of social media in their communications with clients (e.g., remind therapists to not use social media to communicate information to clients that belongs in the clinical record; remind therapists to advise their clients to avoid using non-urgent social media to inform them when they are contemplating suicide).  Do you agree?  (Obviously, most other types of business won’t have such concerns.)

    Dan Pottiger
    Human Resources Coordinator
    Peninsula Behavioral Health

  • I have absolutely no problem with employees and employers talking about  who owns the content and contacts when an employee is using social media as part of the job. But I guess I would like to see that as a negotiated agreement along with pay and vacation. The easiest way to handle contacts  is to give both the employee and the employer copies of the contact information and the end of the employment.  The content will generally belong to the employer if it was done as part of the job–work for hire. But the employee can ask for permission to reprint it.  It gets trickier when the employee is using a personal social media account–so it is important to figure this stuff out at the beginning.  So yes, but not as a “policy” issued by the employer.

  • First, having a policy won’t limit your liability if one of your therapists violates patient/therapist confidentiality obligations. You will get sued  and you will have to fight it out about whether or not the therapist’s actions were in the course and scope of the employment or solely in their personal capacity.  I also wonder how a licensed therapist could forget about keeping client communications confidential.  Those obligations are fundamental to the license and the position.  So having a policy about confidentiality is kind of like pouring a bucket of water into a lake. It raises the level, but without the lake, you’re going to die of thirst anyway.

    It’s essential for mental health organizations to think through how therapists and clients are communicating and to take precautions to protect client confidences. But this is something that each therapist has to figure out based on their personal boundaries about availability, and the organization needs to address to meet its obligations to protect both the therapists from harassment by clients and the clients’ private information.  So yes- discuss it, do training, deal with issues as they come up.

    Frankly, other than prohibiting all client/therapist communications on social media, I’m not sure how you could draft an organization-wide policy. I’d be happy to discuss it with you further–but not here. :>

  • Great points.  One of the problems with using social media for promotion of a business is that it is more effective where there is a human being’s personality associated with it because that person’s reputation and credibility are on the line.  The corporate pages and accounts usually sound like marketing and feel like spin.  So sorting out what you are doing on social media is the first task. 

    When the company and employee can answer that question, then they should figure out who owns it. For liability though, the employer is always going to get sued if it is even remotely related to whatever the problem was.  If the employer takes the position that it was all the employee’s personal acts and the company had nothing to do with it, the employer’s insurance company gets to hire and pay for two sets of lawyers, one for the employer and one for the employee, to fight it out.  And policy or not, the employer will still probably be liable if the employee can show that what she did was generally in the scope of her job–whether or not the employer knew about it or approved.

    Policies simply can’t and won’t cover everything that happens. Training and having supportive, open, relationships between managers and employees using social media are the best ways to prevent and reduce problems.  But that requires management who actually understands social media, how it works and what the company is doing there in the first place.

    Blaming the employee and claiming he violated a written policy in the handbook will just backfire.

  • Thank you!  If you have questions, post them and I’ll try to answer.

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  • I am very interested in using some of these points in a paper I am doing on NLRB protected activity and how it relates to social media. One thing I did notice in your article…Section 7 of the NLRA is the section lists the rights employees have to engage in protected activity, otherwise referred to as Section 7 Rights. Section 8 lists the unfair labor practices for both employers and unions.

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  • Hi Heather, this is really interesting because right now I’m creating the digital presence of a company, and many of the employees are not even on the SM platforms, and those who do I would like to get involved with our FB page/ Twitter/ LinkedIn

    I would like to offer them a basic social media training and basic guidelines, but no as imposing but as something they can use for the careers, (for example LinkedIn).

    The more I read about Social Media Policies the less I’m interested in developing a strict book for folks. Though for now I’m the only one doing the tweeting/posting/pinning.

    I know this article is over 6 months old, do you still feel the same way about SM Policies?


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