Boise State on Business by Gundars Kaupins: Don’t make social networking policies vague, overly broad

Gundars Kaupins, professor of management, College of Business and Economics at Boise State UniversityMay 7, 2013 

Gundars Kaupins

Here is a little bit of what happens on Facebook.

Sam posts: “Carl is a terrible CEO. He wants to control everything, has us work overtime forever, and he doesn’t listen to anybody.” Saturday at 8:45 p.m.

Emily posts: “The king strikes again.” Saturday at 9:07 p.m.

Sam posts: “That’s why I hate monarchies. The working conditions are unbearable.” Saturday at 9:16 p.m.

34 Likes 14 Comments

So what can Carl and the company do if they happen to see such postings?

Based on recent court rulings from the National Labor Relations Board and comments from its General Counsel, union and non-union employees should not be prohibited from discussing or complaining about their working conditions with co-workers. The National Labor Relations Act allows employees to have “concerted activity” in such discussions. It is sort of like a discussion in front of a virtual water cooler. Criticizing managers is protected speech.

But there are cases where the speech can cross the line. In one of the 14 comments, Fred posted: “Hey, I just found out that stupid rat Carl’s password to his email — it is ‘golf$&player’. Time to embarrass the daylights out of him.”

In this case, Fred provided an invitation to harass Carl by inviting employees to pretend to be him in his e-mail account. Online harassment and bullying among employees is inappropriate.

So what legal social network policy may Carl and his company craft? Company social network policies should protect employees from harassment, bullying, discrimination or retaliation that would not already be allowed in the workplace. General statements that restrict communications that are offensive, demeaning or abusive would be considered too broad and ambiguous.

Confidentiality provisions that specifically outline the systems, processes, products, know-how and technology information that should not be shared are appropriate. Confidentiality provisions that generally prohibit the release of confidential company information would be considered too broad.

Companies can prohibit employees from stating that their opinions on social media are those of the employer. They can require employees to state that their postings are their own and not the employer’s.

Social network cases are still evolving. One of the issues with Facebook and other social networks is that we are not always sure who posted negative language about CEO Carl. Someone with knowledge of Sam’s, Emily’s or Fred’s passwords could have posted the language without their knowledge.

The issues get thornier when employees discuss problems with the company’s service or product — especially when they can potentially cause physical harm to customers. What if some of the information was not true?

In summary, free speech about company managers is protected even when it is negative. The protections dissolve when the speech leads to harassment, bullying, discrimination or retaliation.

If the company creates a social networking policy, harassment, bullying and related offenses should be considered inappropriate. They also should be specific as to the type of confidential information that should not be shared in the public. General bans on confidential information are considered too broad by the National Labor Relations Board.

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gkaupins@boisestate.edu

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