A Ruralinfo.net Editorial
Social media and what employees can do and say is kind of a New Frontier. Basically, with the surge of Facebook, Twitter and all of the other social media websites out there, we are more or less, as a work force, stumbling in the dark. So what exactly are the rules concerning Postal employees and what they can and can’t say while using social media?
I asked the USPS law/ethics department what the regulations are regarding social media and postal employees. Below is my question and their response:
My Question: Does the new revised social media policy restrict craft employees from engaging with each other on social media sites.. My understanding is that the new policies are that postal employees are not to speak on behalf of the USPS or act like they are in an official capacity.. Can you possibly shed more light on this?
Answer from USPS law/ethics dept: You are correct – the attached Social Media Policy mainly addresses the conduct of Postal Service employees who use social media in their official capacity to communicate with the public or Postal Service employees. However, it also notes that Postal Service employees who choose to use social media in their personal capacity must not speak for or act on behalf of the Postal Service.
Concerning your question about communications with craft employees on social media sites, the policy states, “[w]hether Postal Service employees chose to participate in social media on their own time is their decision.” However, the misuse provision of the Standards of Ethical Conduct still apply. Pursuant to the misuse provisions, employees may not use government property or time in an unauthorized manner. 5 C.F.R. Section 2635.704 and 705. You can use government equipment and be on official time to access social media sites if you are doing so for official duties, assuming such duties attach to your position. Otherwise, using social media sites for non-government purposes should be limited to off duty hours, using non-government equipment.
Clear as mud right?
The National Labor Relations Board has issued some guidelines. They found early on that some employers were violating labor law with their social media policies. Here are a few of the major guidelines they released:
1. Employers may prohibit employee “rants.” Under the National Labor Relations Act, when employees converse with each other about their workplace conditions, they engage in “protected concerted activity.” However, individual employee rants (e.g., when one employee posts inappropriate comments without engaging in dialogue with other employees), are not protected under the Act. And the NLRB has expressly ruled that employees may be disciplined or terminated for engaging in such public rants. Prohibiting this behavior in a social media policy does not violate the Act as long as it does not chill protected speech.
2. Employers may restrict employees’ commercial use of company marks. While employees have the right (in fact, under certain circumstances, the obligation) to disclose the name of the company about which they are complaining or conversing on social media, employees do not have the right to use company logos and protected marks for commercial purposes. Importantly, however, an employer’s policy should clearly explain that restrictions on the use of company marks do not prohibit employees from making non-commercial use of the marks, such as in workplace or work-related discussions or in labor related activities (for example in connection with a legal protest about workplace conditions).
3. Savings clauses are recommended, but may not win the day. A “savings clause” is a statement such as “[n]othing in this policy should be construed or applied to prohibit employees’ rights under the National Labor Relations Act.” These clauses are valuable, and it is wise to include them. That said, recent decisions have held that it is unreasonable to expect employees to understand the Act well enough to know what provisions of a policy may not apply. Accordingly, the best practice is to include the clause, but also be transparently compliant with the Act.
4. Confidentiality clauses should be narrowly tailored. It is reasonable for an employer to restrict employees from disclosing company trade secrets in social media. However, employers cannot completely restrict employees’ rights to discuss wages, workplace conditions, and employee or company performance. Such discussions among employees are protected under the Act, even if held in a public or semi-public forum.
5. Generic or overly broad “courtesy clauses” should be avoided. General prohibition of the use of colorful language, distasteful critiques and unseemly remarks in social media (otherwise known as “courtesy clauses”) may be construed to restrict employees’ rights to publicly criticize their employer. The NLRB has held that courtesy clauses violate the Act. Poor taste does not undermine employees’ rights to discuss the terms and conditions of their employment. Employers may encourage employees to refrain from making insulting remarks or engaging in hateful speech in social media. However, employers may not impose wholesale restrictions.
6. Restrictions on outside and/or unauthorized interviews may violate the Act. For reasons like those discussed above, the NLRB has ruled that policies prohibiting employees from engaging in outside or unauthorized interviews violate the Act. However, unlike courtesy clauses, the NLRB upheld a clause in a social media policy that prohibited “bad attitudes.” Essentially, this means that while an employee has the right to speak publicly and even distastefully when engaged in discussion with other employees, the employee does not have the right to act offensively in outside and unauthorized interviews about the company. These types of interviews are not “concerted activities” and therefore are not protected by the Act.
7. Opinions are largely protected. Expressing an opinion in social media discussions among employees, even if an opinion is factually incorrect, is protected under the Act. While this may seem counterintuitive, the NLRB reasons that when employees engage in discussion about workplace conditions, their comments may not always be factually accurate. Yet, requiring absolute accuracy is viewed to oppose employees’ rights to engage in protected activities. Simply put, the purpose of discussion is to come to a collective understanding or discussion and, in so doing, people must be permitted to express their opinions, even if their statements are not entirely factually accurate.
8. Employers remain entitled to enforce important workplace policies, even in the context of social media. Employers retain the right to prohibit sexual harassment, workplace violence and threats of violence, sabotage and/or abusive and malicious activity. And employers also may limit employees’ use of social media at work, during working time, and/or on company equipment. Finally, even if employees are engaging in protected concerted activity, an employer can suggest that they should exercise good judgment and caution employees that if their conduct violates the rights of other employees or third parties, it may result in liability to these individuals. Keep in mind that most provisions held by the NLRB to be unfair labor practices were written as “absolutes” or “mandates.” Polite and useful suggestions are acceptable as long as it is clear that they are just that.
More reading:
The NLRB and Social Media | NLRB
Social Media Policies And The NLRB What Employers Need To Know
Social media policies: not all are legal, employers take note – AGBeat
Employers’ Social Media Policies Come Under Regulatory Scrutiny – NYTimes.com
USPS Social media policy
Postal employees should also pay close attention to the Hatch Act and what we can and can’t do concerning political activity. See more about the Hatch Act at this link.
Bottom line, the regulations concerning social media and employee’s rights are still in the emerging stage. If a postal employee runs into trouble over their social media postings, the first thing I would suggest is to get in touch with the NRLCA and the National Labor Relations Board (NLRB) as soon as possible. The lines are very thin on what is allowed and what isn’t.
What about Free Speech?
We do have Freedom of Speech, but as you can tell from these rulings and guidelines, they are limited in relation to work and social media. My advice is, if you have a thought that what you are about to post could get you in hot water, then don’t post it. Just know that if you are caught in a situation, the NLRB has ruled in favor of employees in the past.