When a public relations issue strikes, it can be difficult to find time to implement new procedures or educate employees on new legal concepts. This is particularly true where social media can trigger a public relations crisis almost instantaneously. Accordingly, an organization should develop a public relations response plan before it needs one. An effective response plan can help your organization protect its reputation, remedy any improper behavior, and prevent a small distraction from snowballing into a public relations disaster.
To be effective, however, a response plan must comply with the law. Because labor and employment law affects employee communications in a variety of ways, companies should remember the following concepts when they are creating their response plans:
1. Ensure employees understand that the company may review their communications on company systems and on public forums.
During a public relations crisis, your company may need to monitor employee communications for several reasons. For example, to investigate potentially inappropriate behavior, you may need to review e-mails that employees have sent on company computers or servers. You also may need to view public social media postings, in order to gauge morale, monitor public opinion, or determine what improvements or responses to implement. (Depending on your size, you may find it worthwhile to designate an official or entire team to proactively monitor social media and other non-private information, to help get out in front of any developing issues.)
In Ohio and most other states, companies have broad rights to monitor employee communications on their systems (including computers, company-provided mobile devices, and company e-mail servers) and to monitor public social media postings, but it is critical to inform employees in advance that you will be doing so. Otherwise, if you act on the information you uncover, an employee may claim she is being “singled out” for unlawful discrimination and, in some limited circumstances, the employee may have a common law invasion of privacy claim. Thus, at a minimum, you should notify employees through a policy or other writing that their communications on public social media and company systems may be monitored. Failing to do so can tie your hands.
2. Understand what your social media policy may prohibit.
A company also should address how employees may use social media as it concerns the company. These types of policies should cover, at a minimum: (1) which employees may speak on the company’s behalf; (2) what types of communications employees may make; and (3) how and when an employee must obtain approval before speaking for the company. Although several laws restrict how employers may address these areas (as noted below), there are certain types of conduct that employers may prohibit in almost any situation. Specifically, a private sector may maintain a policy that, at a minimum, prohibits an employee from: (i) indicating that the employee is speaking for the company when the company has not authorized the employee to do so; (ii) making statements that would create a hostile work environment or otherwise constitute discrimination; (iii) making intentionally false statements; (iv) disclosing proprietary information; and (v) using social media during working time. If your company does not already maintain a policy that restricts these types of activities, it should do so as soon as practicable; if you wait until after an employee has made a legally protected communication, it may be unlawful to implement a restriction in response to that protected communication.
3. Ensure that your social media policy is not overbroad.
There are, however, limits on what a social media policy may prohibit. Most significantly, the National Labor Relations Act protects employees’ right to attempt to improve group working conditions, even when employees undertake those efforts on social media. In prior years, the National Labor Relations Board (NLRB) broadly construed this concept, such as by precluding employers from discharging employees when they complained about managers on Facebook and disparaged their employers’ products in the course of complaining about related working conditions.
Although the NLRB has narrowed this doctrine in some ways over the past year, it remains unlawful to prohibit employees from discussing wages, benefits, or other non-proprietary working conditions on social media (with very limited exceptions). If an employer enforces its policies consistently, it may prohibit social media posting during working time and may prohibit certain types of communications that would violate the law (as noted above), but employees generally have a broad right to publicize complaints about working conditions. This makes it particularly important to address these complaints quickly, as noted in point five below.
4. Understand what types of communications can give rise to retaliation claims.
Unfortunately, it is not enough to simply maintain a lawful policy. Rather, a company must ensure that it applies the policy lawfully as well. If an employer singles out only legally protected activities, that can form the basis for a retaliation claim. For example, although an employer may require employees to report safety issues to a particular manager, an employer cannot utilize that policy to prevent an employee from reporting a safety issue to the Occupational Safety and Health Administration (OSHA). As another example, although an employer may prohibit employees from disclosing truly proprietary information, it would be unlawful to enforce that policy only when an employee is reporting related unlawful conduct.
Thus, when your company is investigating events that created a public relations issue and preparing to possibly issue discipline, you should think critically about whether the employee is engaging in some legally protected activity. This can occur in a variety of situations, but you should be particularly cautious when an employee has complained about allegedly unlawful conduct, or when the employee is arguably attempting to improve working conditions. The law does not categorically prevent employers from addressing misconduct when the employee also has exercised some protected right, but employers should ensure they fully understand the law and the facts in these types of situations.
5. Clearly define employees’ reporting responsibilities.
Although employees sometimes have a legal right to disclose certain information outside a company, companies have broad flexibility to prevent employees from also concealing that information from the company itself. For example, even if an employee has a right to publicize harassment on Twitter, the employee typically cannot ignore a company policy that requires the employee to report the conduct to a supervisor as soon as possible. Likewise, even if an employee may report a safety issue to OSHA, that does not excuse the employee from failing to report the issue to her manager. Thus, a company can manage problematic communications by requiring employees to report them internally as well, which then allows the company to promptly address them. (There are small exceptions to this concept, however, such as that an employer may not require employees to report some types of union organizing activities.)
To maximize your ability to get out in front of developing issues, it is essential to maintain policies that clearly instruct employees how to report complaints, concerns, or other issues you may want to address. At a minimum, a company should require employees to notify a designated official about safety concerns, any potential harassment or other discrimination and any other potentially unlawful conduct that comes to the employees’ attention. (Of course, the company should think strategically about who it assigns to receive these reports.) If an employer fails to clearly identify employees’ duties in these situations, that might prompt an employee to publicize a situation without ever giving the company a chance to address it.