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Saving legal Face
I feel the need to confess something right here and now. I personally don’t like Facebook. I just can’t delude myself into thinking that anybody actually cares what brand of syrup I bought at the store this morning (yes, this...
I feel the need to confess something right here and now. I personally don’t like Facebook.
I am certainly not the first person to publicly confess to this. At the Gemological Institute of America’s 2011 Symposium in San Diego, New York University professor Scott Galloway admitted that he didn’t like Facebook either. But he also made this point: whether or not you like it is not the issue.
The fact is Facebook is here, ostensibly to stay, and it is a place where millions of people are interacting every day. As a business owner you need to be part of the conversation. You also need to be aware that your employees are likely part of this ongoing online conversation too, and there are limits to the limits you can place on their freedom of speech.
Recently, a case arose in Mississippi where a police officer sued the city, mayor and police chief after she was fired for posting a Facebook update insinuating that she disagreed with the police department’s decision not to send a representative to the funeral of a police officer from a neighboring town.
The case caught my attention because questions surrounding the legality of Facebook, and social networking in general, are ones that employers need to have answered going forward.
New York attorney Alix Rubin, who specializes in employment law and whose husband works for an independent jeweler in New Jersey, said that the laws that protect the police officer in the Mississippi case, a public employee, don’t apply to private employees.
“Everybody has a right to free speech,” she says. “But not everybody has a right to free speech in the workplace.”
Like all private employers, retail jewelers can restrict what their employees post on social networking sites while they are at work, to an extent.
Rubin says employers can prevent
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their employees from posting information or images that are violation of the store’s anti-harassment or anti-discrimination policy (provided the store has one, which it should), trade secrets or personal views that are presented as though they were the store's view.
However, the National Labor Relations Board recently ruled that non-supervisory employees cannot be punished for discussing anything related to their working conditions, including treatment from their boss, their wages, other employees’ wages and their hours, on social networking sites while at work as long as it’s not during a time when they are supposed to be working, i.e., on their lunch break.
This applies, though, to only non-exempt employees; the NLRB has no jurisdiction over supervisory employees.
Rubin recommends that employers draft a social media policy. It shouldn’t be too general, keeping in mind that you cannot legally restrict certain employees from talking about their working conditions, and should be tied to the store’s (hopefully) existing anti-harassment or anti-discrimination policy.
“Social media policy is important to have so you have some control over what your employees do on social media but they shouldn’t be blanket statements,” she said. “You can, as an employer, restrict your employees from using racial or sexual slurs.”
For posts made outside of work, private employers actually do have some legal ground to stand on if an employee posts something harassing another employee and the situation seeps over into the workplace, or if an employee posts trade secrets or positions themselves falsely as a spokesperson of the store.
But, Rubin says, the bottom line is that employees need to get an attorney-reviewed policy in place beforehand, so employees can’t say they didn’t know. “Small business owners feel that they can’t afford it but what they need to realize is that it’s going to cost them more when they get into trouble,” she said.
However, the National Labor Relations Board recently ruled that non-supervisory employees cannot be punished for discussing anything related to their working conditions, including treatment from their boss, their wages, other employees’ wages and their hours, on social networking sites while at work as long as it’s not during a time when they are supposed to be working, i.e., on their lunch break.
This applies, though, to only non-exempt employees; the NLRB has no jurisdiction over supervisory employees.
Rubin recommends that employers draft a social media policy. It shouldn’t be too general, keeping in mind that you cannot legally restrict certain employees from talking about their working conditions, and should be tied to the store’s (hopefully) existing anti-harassment or anti-discrimination policy.
“Social media policy is important to have so you have some control over what your employees do on social media but they shouldn’t be blanket statements,” she said. “You can, as an employer, restrict your employees from using racial or sexual slurs.”
For posts made outside of work, private employers actually do have some legal ground to stand on if an employee posts something harassing another employee and the situation seeps over into the workplace, or if an employee posts trade secrets or positions themselves falsely as a spokesperson of the store.
But, Rubin says, the bottom line is that employees need to get an attorney-reviewed policy in place beforehand, so employees can’t say they didn’t know. “Small business owners feel that they can’t afford it but what they need to realize is that it’s going to cost them more when they get into trouble,” she said.
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