Some of the legal community’s thoughts on the validity of the NLRB’s social media views collected by Lance Godard suggest that we’ll have to wait a while to see how this all shakes out before we can know what to do next … but for now, Everything You Know is Wrong. Of course, in the real world, we do not have the luxury of waiting. Health care employers — and all other employers — need to know today what to ask of their workforces when it comes to appropriate use of social media.
The basic premise of the NLRB in entering the fray is that an employer may not limit employee discussion of conditions of employment (union shop or not) via social media, just as it may not in real life. Other speech on social media may be limited by employers on social media, just as it may be in real life. A crime reporter announcing publicly that his town needs more murders because he has nothing to write about may be fired whether he says it on Twitter — them’s the facts and holding of a recent NLRB case — or through some other platform. I don’t think we need to retreat and consider the principle behind this holding invalid while the inside-the-beltway much and mire is cleaned up.
The twin danger zones for employers have not changed in light of the invalidation of these NLRB rulings. It is allways possible to over-regulate or under-regulate the use of social media by employees, whether during working hours or otherwise. Pollicies in this realm need to be informed by an understanding of the law, an understanding of what it means to be part of an employer’s workforce in 2013, and an understanding of the uses and the powers of social media.
