Online—Can’t Prohibit the Bad, Can’t Allow the Good?

Today's HR Daily Advisor Tip:
Online—Can’t Prohibit the Bad, Can’t Allow the Good?


Topic: HR Policies and ProceduresIs that right? You can’t prohibit employees from saying bad things online, yet you also can’t allow them to say good things? To some extent, that’s true, says attorney Peter Lowe.


Lowe, who is a partner at Brann & Isaacson in Lewiston, Maine, offered his tips at the BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas. Lowe is a member of the Employers Counsel Network and writes the BLR/HRhero Maine Employment Law Letter.
Can’t Prohibit Saying Bad Things

Employers who want to restrict employees’ negative comments about the employer and its management may run afoul of the National Labor Relations Act, notes Lowe.

Employers need to be careful not to violate employee rights under NLRA, which states:

Employees shall have the right to self-organization … And to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
—29 U.S.C. § 157

Lowe recommends that policies state:

Nothing in this policy is intended in any way to restrict an employee’s right to engage in any concerted activities under the National Labor Relations Act.

The NLRB General Counsel released a report of social media cases in last year, Lowe notes. Of nine cases dealing with employee use of social media, four were found to be protected communications. All three social media policies challenged were struck down as overbroad.

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Representative Cases

Lowe cites three cases that help employers understand the NLRB rules:

American Medical Response of Connecticut, Inc.

Dawnmarie Souza worked for an ambulance company. She posted ugly and inappropriate comments about her supervisor on Facebook and coworkers commented on her “status.”

After she was terminated, the NLRB filed a complaint against the employer for interfering with concerted activity and declared the company’s social media policy overly broad.

The ambulance company settled for an undisclosed amount of money & agreed to change its policies.

JT’s Porch Saloon & Eatery, Inc.

A bartender complained to his coworker about the bar’s policy of waitresses not sharing tips. He posted in a Facebook conversation with his stepsister that pay sucked, he wasn’t getting a cut of the tips, and that the customers were all rednecks.

No coworkers commented on his post. The bartender was fired for his Facebook posting, and the NLRB upheld the decision, because the bartender had made no attempt to initiate group action.

Karl Knauz Motors, Inc.

A BMW car salesman posted pictures of a BMW sales event on Facebook, mocking food given away at event. He also posted pictures of an accident at a commonly-owned Land Rover dealership. The salesman was fired.

The NLRB determined that the posts about food were protected; however, the posts about the accident were not.

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Can’t Allow Employees to Say Good Things

The FTC has recently cracked down on employees who say good things about a company without identifying themselves as employees, says Lowe. The agency has particularly targeted:

“Flogs” –fake blogs
“Astroturfing”—the posting of seemingly objective customer reviews that are biased

The FTC’s revised guidelines, says Lowe, require disclosure of interest in reviews by:

Employees
Relatives
Giveaway recipients

For example, the FTC took enforcement action against the online PR firm, Reverb. Reverb settled, agreeing to:

Prohibit employees from endorsing client products without disclosing their interest
Remove existing employee reviews that didn’t disclose interest
Distribute a copy of settlement to employees

Lowe recommends that employers’ policies include guidelines for online reviews, blogs, product comments, etc. In particular, policies should:

Set parameters for commentary
Require disclosure of employment relationship
Explain the need for limitations
Offer sample posts or review disclosures