February 11, 2013 By Colin Wood
As long as there is work, there will be people who complain about working. While rights to freedom of speech protect employees who vent about stressful or difficult jobs, social media has changed the dynamic over the past few years. In January, the National Labor Relations Board (NLRB) issued a series of rulings and advisories that changed the rules for private businesses that want to punish workers who make these feelings public using social media.
The board's rulings make it illegal for most private companies to enact broad policies that would punish workers who criticize their employers or work conditions if such venting could be considered part of an employee's right to work toward improved working conditions. While the NLRB's actions do not affect government agencies, they do raise a question: Should government agencies explicitly allow or disallow such behavior from their employees?
It can be difficult to determine where the line should be drawn between standing up for one's rights and destructive ranting detrimental to an agency's reputation. The NLRB rulings are only intended to protect a worker's rights, said Nancy Cleeland, director of the Office of Public Affairs for the NLRB. “This law is based on what we call 'protected concerted activity,' which is narrow,” she said. “We're not saying any employee can write anything they want at any time. The National Labor Relations Act protects the rights of employees to act together to improve their wages and working conditions or to just communicate with each other about them and that is the piece that we are looking at.”
The inclusion of social media in the National Labor Relations Act is intended to be an extension of protections that already existed. Many consider Facebook conversations to be a new form of “gossiping around the water cooler." But to form a fair social media policy, the impact of an employee's statement must be considered, said Bill Greeves, CIO of Wake County, N.C. “You have to differentiate between what is doing harm to the brand or to the image of your organization compared to somebody who is venting without any consequence. Employees have to have a certain level of responsibility," Greeves said.
He rejects the notion that social media platforms are the new water cooler, drawing a distinction between the two. "Water cooler chat or talking to a friend over a drink at the bar after work, that's a really isolated discussion. But when you go out and vent on social media, you're venting to all your friends, and their followers, and your comments ... expand exponentially.”
There is a shared responsibility, Greeves said. It's the government employee's job to use common sense when making his or her opinions public, and it's government's job to provide a set of general guidelines that will guide employees in the right direction. “We should be able to guide employees to smart use of social media and not try to dictate to them,” he said. Dictating rarely works in such cases anyway, Greeves said, so a government's goal should be to craft a social media policy that will encourage employees to think before posting. Greeves shared an early draft of a personal social media policy in Wake County, N.C.:
“The County acknowledges employee rights to privacy and free speech that may protect online activity conducted on personal social networks. However, what is published on such personal sites should not be attributed to or reference the County and should not appear to be endorsed by or originated from the County. Employees that choose to list their work affiliation or reference their employment with the County in any way on a social network should regard all communication on that network as if it were a professional network.
... Online lives are ultimately linked, whether or not employees choose to mention the County on personal online networks. County employees engaging in social media networks must at all times be conscious and respectful of the fact that their words and actions are representative of the County, regardless of when, where and how the content was posted.”
Formerly a CIO for Roanoke County, Va., Greeves recalled an incident in which an employee was fired for statements she posted online. In her online profile, she was listed as a county employee. In this case, she was clearly making threats and so she was justly fired, Greeves explained. While threats aren't likely to be protected by anyone, government employees can protect themselves online by removing all job or employer references from their online activity. "But that’s not a very realistic scenario these days," Greeves said, adding that many people elect to clarify their statements as being personal, rather than representative of their employer.
Greeves' own Twitter profile, for example, includes the disclaimer, “Opinions are mine, not my employer's.” Such a disclaimer makes his intentions clear -- he is communicating as an individual, not as a government representative.
Many governments have a social media policy that outlines how the government's own social media presence should be run, with no mention of how employees should conduct themselves personally online. Such social media policy is even more crucial in government than it is in the private sector, Greeves said. “We're not just preserving an image or a brand name, we're a safety net, the single source provider to everybody who's in our audience,” he said. “We're not worried about the competition aspect, but we have to be all things to all people and so we've got to maintain a really strong level of trust and confidence in our ability to deliver what our taxpayers expect.”
While the NLRB rulings sought to prohibit private companies from instituting broad policies that could impinge on worker rights, many government agencies recommend policies to protect both the worker and the organization. But governments shouldn't follow the same rules as private companies, because they're not the same, said Kim Kaan, Web editor for Communications and Public Affairs in Chandler, Ariz. “I do think our social media policy is a good standard,” Kaan said. “In the public sector, we really have to keep in mind that we're public employees, so we have to be as transparent as possible. It's a great reminder to public employees that whatever you post, you assume it as a public employee.”
Chandler's personal use social media policy takes a stricter approach than the policy being proposed for Wake County, N.C.:
“Employees assume any and all risk associated with their off-duty personal/private blogging and use of social media on non-City-owned equipment. The City may require immediate removal of material and/or take disciplinary action for personal/private blogging or personal/private use of social media sites by employees that causes disruption of the workplace or impairs the mission of the City. Employees who engage in personal/private blogging or use of social media sites may not:
a. Attribute personal statements, opinions, or beliefs to the City of Chandler;
b. Disclose confidential City information;
c. Use the City logo or trademarks; or
d. Post any material that: (i) constitutes harassment, hate speech, or libel; (ii) violates the privacy rights of fellow employees; or (iii) is disruptive to the work environment because it impairs workplace discipline or control, impairs or erodes working relationships, creates dissension among co-workers, interferes with job performance, or obstructs operations.”
To her knowledge, the city has never fired an employee for statements made online, but when one employee began presenting his opinions online, the city asked him to add a disclaimer to his profile to make it clear that his opinions did not represent his employer.
Public employees are different than private sector workers, Kaan said, and everything they say becomes part of the public record. “Public employees are held to a higher standard and you need to conduct yourself knowing that you work for a public entity and whatever you do could be reflected onto your organization,” she said.