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Does Your Firm’s Employee Handbook Address Posting and Tweeting?

The National Labor Relations Act (“NLRA”) which applies to most public and private sector businesses, guarantees the right of employees to organize and bargain collectively with their employers. It also guarantees employees’ rights to engage in or refrain from engaging in other protected concerted activity. So how are social media and the NLRA related? And what does this mean for your firm?

Your firm’s employees may use social media, such as Twitter and Facebook, to criticize your firm’s business practices or to make derogatory comments about your firm, their supervisors or co-workers. In past years, a company could just terminate employees for making such comments on social media sites. Not anymore. Using a social media post as a basis for firing an employee could be a violation of his or her rights.

A real example of this is when a luxury car dealer hosted a sales event where the refreshments served were less than luxury - hot dogs and water. Frustrated by management’s decision to serve such cheap refreshments to his customers, an employee took his complaints to Facebook. This same employee was later fired for his comments. He filed a complaint with the National Labor Relations Board (“NLRB”), the agency that enforces the NLRA, citing a violation of is rights to engage in “protected concerted activity”. His Facebook post, while perhaps perceived as just another disgruntled employee complaining about management, was directed to his co-workers who were also his Facebook “friends”. The NLRA found that this employee was rightfully concerned that serving hot dogs and water to his customers would have a negative impact on his ability to sell cars, which could impact his compensation.

How can your firm protect itself? By making sure it has a Social Media Policy. A well drafted Social Media Policy will ensure that employees understand what is and is not acceptable when it comes to social media - both personally and professionally. Though it is not an exhaustive list, some provisions that a good Social Media Policy will contain include:

• Prohibiting use of company’s logo or trademarks without written permission;
• Prohibiting the sharing of confidential and/or proprietary information;
• Requiring employees to disclaim that the views they express are their own and not the views of the company;
• Limiting the amount of time at work employees can spend on social media sites; and
• Making it clear that there is no expectation of privacy.

A complete ban on online employee discussions of personnel policies, wages or working conditions is a clear violation of the NLRA. Therefore, accounting firms need to be careful when they consider terminating an employee based on his or her posts on social media sites. It is bestpractice to talk to employment counsel before doing so to make sure not to run afoul of the NLRA.

This article was originally posted in The Free State Accountant, a publication of the Maryland Society of Accountants.