Allan Bliesmer likes social media.

Bliesmer, vice president and Great Plains district manager at Hensel Phelps’ Denver office, says social media are transforming the way the firm communicates with the public and the construction industry and how it recruits new talent. Through sites such as Facebook, LinkedIn and Twitter, Hensel Phelps announces construction milestones, awards and employee promotions and reaches out to college students to convey career opportunities.

“It’s not a trendy item. It is kind of the mainstream now,” Bliesmer says. “Look at our [U.S.] president, right? It’s a great way to reach a lot of people, and you can reach them very quickly. There’s not a lot of barriers. You don’t have be home to watch TV at a certain time to collect information. It’s very accessible,” he says.

“I think it’s one of those things that you have to embrace as a company, and you have to learn how to manage social media within your organization, whether it’s your employees or whether it’s information that’s going out officially from the organization,” he adds. “I think if you’re an organization that’s not embracing it, you’re really just kind of falling further behind.”

However, even with its many upsides, social media also present issues that should give companies pause. The first is the sheer volume of information it generates—there’s a lot of data to manage, says Bliesmer. The second question involves authorizing only certain staff members to send out messages. At Hensel Phelps, social media are the province of the firm’s marketing and communications group, which has sole authority over posts, Bliesmer says.

Third, users must understand that social media messages, like diamonds and email, are forever. What gets tweeted may be retweeted many times. Moreover, if the message becomes embroiled in a legal dispute, companies are required by law to preserve it, says Jackie Wheeler, an attorney whose practice with the law firm Munsch Hardt, Dallas, includes social media issues. 

Fourth—and perhaps of greatest concern for employers—National Labor Relations Board (NLRB) recent rulings give employees wide latitude to criticize their working conditions on social media, with little fear of retribution from their bosses.

Says Wheeler, “All it takes is a ‘like’ or another employee commenting,” and the post is considered “a concerted action for mutual aid and protection,” as it is known in employment law. So long as the message pertains to topics such as pay, working conditions or other items that employees are legally entitled to discuss, the NLRB views it in the same way as two people chatting in the break room. 

Unprotected Speech

The disparagement of a company’s product is not given protected status, nor is what the law calls personal griping, says Laura Weinrib, assistant professor of law and the Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School. However, the line between such comments and protected expression often can be blurry, Weinrib cautions. For example, criticism of a product manufactured by nonunion workers could be construed “as sufficiently connected to a labor dispute that it would be legally protected,” she notes.

Weinrib’s colleague, Geoffrey R. Stone, the Edward H. Levy Distinguished Service Professor at the University of Chicago Law School and a nationally recognized expert on the First Amendment, observes that, outside the protections of the National Labor Relations Act, employees don’t automatically enjoy unfettered free speech. Indeed, the First Amendment’s free-speech requirements apply only to the government and not to private employers, Stone says. In particular, private companies can use the employment contract to limit what employees can say, subject to regulation under state contract laws, he adds.

Stone says, “Employees should understand what limitations, if any, there are on their ability to speak freely that are either explicit or implicit in their employment contracts, assuming they don’t want to get disciplined or fired. … That means either going to a lawyer or your employer and having a common understanding of it.”

Along those lines, employers should craft social media policies and incorporate them into an employee handbook, Wheeler urges. That said, what to include isn’t always clear-cut. 

“There is no model policy,” Wheeler says. “But when the NLRB evaluates an employee handbook or specific policies, they have been pretty good at sending out memoranda saying, ‘Here’s an unlawful policy. Notice this language—that’s not OK.’ Or, ‘Here is a section that we consider a lawful policy. This language is OK.’ ”

Weinrib agrees with Wheeler. “The best advice for private-sector companies that are trying to formulate social media policies is to look at the posted policies on the NLRB website,” Weinrib says. She points to three specific “general-counsel memos” the NLRB issued in 2011 and 2012 that lay out cases involving social media and describe the NLRB’s rationale for its decisions. The memos are easily viewed at NLRB.gov, entering “NLRB general counsel memo social media” into the search browser.

In one case, the NLRB upheld the firing of a car salesman who posted photos and comments about an embarrassing accident at the dealership next door. In another, however, the board overturned the termination of five employees who used Facebook to discuss a colleague who intended to complain to management about their job performance. In the latter case, the NLRB ruled the online conversation was a concerted activity and protected under the law.

When companies do create social media policies, Weinrib cautions employers to avoid making them so broad that they run afoul of employees’ legal protections.  “Even if a particular employee’s statements are not protected,” she says, “a social media policy can be deemed to be over-broad and to chill concerted activity.”

Even if a company can’t prevent employees from criticizing working conditions on social media, it can encourage them to express their thoughts in more traditional ways, such as face-to-face conversations, Wheeler says. Rather than try to limit employees’ activities, it’s better to suggest options that protect their rights while also endeavoring to keep potentially damaging complaints off social media, she says.

Further, Wheeler voices concern about employers turning to sites such as Facebook and LinkedIn to gather information about potential job candidates. Her blunt advice: Don’t do it.

Social media often offer information that a résumé doesn’t, such as an applicant’s religion, age or sexual orientation, she explains. If a job-seeker is turned down and then sues, the company might be found liable for discrimination if the firm discovered that personal information online and the applicant can prove that information influenced the hiring decision.

Stone, Weinrib and Wheeler agree that easy answers are elusive and urge employers to check with their attorneys before creating social media language for employee handbooks or firing a worker for an errant Facebook post. As Weinrib observes, “These are thorny issues.”