You know the scene: You walk into the room to find an employee whose face is bent over their phone. The little curl of a smile lights up their face as they giggle at the meme or funny posts from their friends. They’re not on task, and you silently add up the minutes of unproductive, on-the-clock time occurring all throughout your building as employees check their Facebook, Instagram, Twitter, Tik Tock, Bumble, and countless other social media outlets throughout their workdays.

Best Practices

As a business owner, you have a vested interest in ensuring that your employees are actually working when they are at work. One way to manage off-task behavior is with a strong social media policy; but before you move forward with a “Facebook is forbidden” policy, be aware of the following best practices:

• Don’t go with a complete ban on phones.  What if we just banned cell phones? As tempting as a “no phones” policy might seem, this is going to get you into trouble in most cases. 

That’s because the National Labor Relations Act (NLRA) – the law that is enforced by the National Labor Relations Board (NLRB) protects employees’ rights to engage in what’s called, “protected, concerted activity.”  Many employers wrongfully assume this law only impacts union or pre-union activities. However, the law actually impacts all aspects of employment, including protecting employee’s ability to have access to their cell phones while at work (see the NLRB’s Advice Memorandum dated July 31, 2018). The NLRA applies to all employers in all 50 states – there are no size or revenue limits! You should assume this law applies to you and your staff.

Regulating social media use in the workplace requires a skilled policy writer like our team at Terch & Associates.  If you regulate too much employee activity, employees or the NLRB can claim damages, back wages, and the like. If the NLRA is new to you, know that it’s always changing based on various interpretations of the rules, which is why it’s imperative you work with someone well-versed in the current guidance in drafting your social media policy.

• Focus on the effect of the conduct on the workplace. Most states, including Minnesota, protect what is called, “lawful, off-duty conduct.” This means that, in some cases, employers generally can’t restrict what employees do when they’re not at work.  In Minnesota, the law is limited to the consumption of certain products (alcohol, tobacco, etc.) but in other states, the protection may be broader.

Social media policies that prohibit employees from “friending” their coworkers, or discourage certain social media activities, are normally going to reach too far in regulating that off-duty conduct.  It is also a violation of the NLRA to prohibit employees from criticizing their supervisors on social media.

Instead, focus on at-work behavior and, in the case of off-duty conduct, the effect of the behavior on the business. Should phones not be visible in front of customers? Are they disallowed in a certain area due to industry regulations, or for workplace sanitation reasons? Focus on the impact phones and social media have in the workplace, rather than the social media activity itself.  

• Harassment, discrimination, and threats of violence. While the general rule above is to not reach too far with your social media policy, you can still prohibit employees from engaging in workplace harassment, discrimination, or threats of violence on social media.  In fact, anti-discrimination rules are clear that employers need to step in when workplace harassment is occurring, even if that harassment is online and/or outside of work hours. 

• Require productivity. Ask yourself this question when thinking about social media policies: What is it that you’re trying to do? Do you really care about employees reading memes? Or do you care because they’re reading memes instead of doing their productive work? In most cases, it’s the latter. If you focus on the fact that you need your employees to be focused, productive, and on-task while they are on the clock, then social media falls into a more broad category with any other off-task behavior and becomes much more contextual. 

In summary, it is important for employers to be thoughtful in writing and enforcing policies about technology and social media in the workplace.  While you need to be careful about not overstepping the law, you can require that employees are working for your benefit during their paid time.  If you have specific questions or would like assistance in drafting a policy that meets your needs, call us today!