Fort Dodge employers learned about social media policy and its implications Thursday.
Stuart Cochrane, of Johnson, Kramer, Good, Mulholland, Cochrane & Driscoll, speaking at Iowa Central Community College's East Campus for the Greater Fort Dodge Growth Alliance session, said employers aren't required to have a policy regarding employee use of Facebook and other Internet services.
"They're becoming more and more prevalent just because social media is becoming more prevalent," he said. "Some employers still don't want them, because they still think having policies may somehow confuse people or limit their discretion."
Such policies are a good idea, Cochrane said. Employers can prohibit cell phone use and texting, or limit Internet use.
"Some policies I have reviewed for employers are limited to that," he said. "They just tell people you can use the Internet only when you're directed to do so, you can only text when you're on breaks, etc. That's perfectly acceptable."
Current policies, Cochrane said, are "all over the board," with some being one page or as many as 50 pages long.
"They define everything. They define what Facebook is. I've seen policies where they spend four paragraphs describing what we know to be Facebook, or what blogging is," he said. "Those policies don't typically provide the specifics the National Labor Relations Act and board is scrutinizing all the time."
Cochrane said an employer's social media policies must be specific, as many policies are ruled by state courts to be "over broad."
Employees, Cochrane said, have been fired for posting on Facebook or Twitter complaints about their managers or work conditions. He said he has even advised employers do so in the past.
"Until ... April, when the last NLRB advisory opinions came out, I routinely told people, hey, just fire them," he said. "If somebody is at work and they go home at night and trash you or your organization, just cut them loose. Well, that may not be as advisable as it used to be."
According to Cochrane, Section 7 of the National Labor Relations Acts protects "concerted activities." By too broadly limiting what information employees can share, employers are suppressing or influencing employees' ability for collective bargaining, which is illegal.
"It really is as broad as any employees discussing anything that has to do with terms or conditions of their employment," he said. "It could be work hours, it could be wages. It could be the intolerance of their work environment. It is really broadly defined."
It is difficult to construct a safe social media policy because cases regarding these policies are being lost and won equally in courts.
"You're not truly ever going to know whether your policies are legit and enforceable under federal law until you might get sued," Cochrane said. "And most employers I know would rather develop a policy that's safe before they get sued."
He added, "Until there is a whole lot more case development, many of you are going to be blind in trying to draft your social media policies."
A risk for employers is that firing employees under their social media policy could violate Iowa public policy. There are exceptions to employment-at-will doctrine, Cochrane said.
"Obviously, discrimination laws are an exception to employment-at-will," he said. "The other big exception is ... discharges that the Iowa Supreme Court has said violate Iowa public policy. That got expanded. Now if I'm a whistleblower or I filed an OSHA complaint, you can't fire me because of that. There are four or five recognized types of discharges that are in violation of Iowa Public Policy. This could be another one, real easy."
Cochrane advocated being specific. For instance, asking employees to use common sense when posting online and prohibiting misleading remarks.
It will be 10 years, Cochrane said, before there is a foolproof social media policy.
"It's new stuff," he said. "Ten years from now, because of the popularity of social media, we're really going to understand the expectations and the legal dos and don'ts a whole lot better than we do now. There's going to be case law and you're going to have really good instruction as to what a policy can look like."