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Looking Deeper into the Crystal Ball: Technology in the Workplace

Employers are creating technology policies intending to give guidance and accountability to employees on the turbulent and evolving subject of technology in the workplace.  Successfully guiding employees in the responsible use of technology as it relates to the employment relationship is truly a challenge.  The emergence of the Internet and social media has provided employees the power to dramatically impact the image and reputation of their employers.  Thus, many companies are creating and implementing technology policies in an effort to gain control over the representations published by employees for the world to see online.  However, employers are well advised that creating and enforcing such policies effectively requires carefully thought and consideration.  Policies that are drafted overly broad can create additional unforseen risks and liabilities, making the issues even more complicated and costly.

For instance, an ambulance company, American Medical Response of Connecticut, Inc., created a technology policy that to broadly regulate employee blogging practices.  The policy “barred employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.”  This policy is undoubtedly very similar to what many employers have promulgated in recent years to their employees.

However, the scope of such policies is now a central issue within a lawsuit initiated by the National Labor Relations Board (NLRB) on behalf of an employee that was allegedly illegally terminated based on the policy.  The NLRB is an administrative agency that regulates and enforces management-union labor relations under the National Labor Relations Act.  The NLRB complaint alleges that the company terminated Dawnmarie Souza, a former employee, in response to her negative comments made online after the company denied her union representation during an investigatory interview.  The NLRB complaint asserts that the company’s decision to deny union representation was wrongful and that the company “maintained and enforced an overly broad blogging and internet posting policy.”  The NLRB issued a press release on the case which can be viewed by clicking here.

This case is illustrative of an emerging issue with technology in the workplace, the impact such technology creates with regard to union organizing and relations.  Furthermore, the case could have serious implications on the development of social media as it relates to the workplace.  An adverse ruling from the NLRB against the employer may significantly increase potential liability for employers as they seek to monitor and control their online image.  NLRB’s position is that the allegedly over-broad blogging policy is illegal as to negative Facebook comments concerning Ms. Souza’s supervisor and the denial of union representation is “protected concerted activity” under the NLRA.

Technology policies can be crafted in many ways, and employers often choose to completely bar an employee from making online work-related comments.  However, most social media prognosticators recommend taking a more inclusive position that provides some employee discretion in this area and acknowledgment that the employee may be disciplined should they misuse this discretion.  Addressing the implication of social media in the workplace is a difficult question that involves a delicate balance between protecting the company brand and not creating additional liability for the company by crafting a policy that may ultimately be deemed illegal.

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