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Considering a Social Media Policy? Come to ASCA 2017 to learn how BY MARCUS CRIDER


Does your ASC have a social media policy? Or does your center want a social media policy but not know where to begin?


If you answered “yes” to either of those questions, you need to attend my pre- sentation, “Social Media Issues from an HR Perspective,” at ASCA 2017, May 3–6, in Washington, DC. A social media policy can address


many legitimate workplace issues, such as the need to protect your com- pany’s confidential information and intellectual property and the need to warn employees of the consequences of inappropriate behavior. Keep in mind, however, that the National Labor Rela- tions Board (NLRB) will not allow for an overly broad policy. You are likely familiar with these social media issues but, like other fundamental human resources best practices, it is important to consistently revisit the “blocking and tackling” of social media because these issues are more common now than ever. Within the last year, for example, the NLRB found that Chipotle’s social media policy violated federal labor law. The case began after Chipotle asked an employee to delete several tweets that it believed were dispar- aging to the company. Although the employee complied with the request, the Board’s general counsel pursued charges against Chipotle that the company’s request was an unfair labor practice and that many provisions in Chipotle’s social media policy were overly broad and violated Section 7 of the National Labor Relations Act. The administrative law judge (AJL)


who initially heard the case agreed with the general counsel that it was improper for Chipotle to ask the employee to delete the tweets because they consti-


8


tuted “protected concerted activity.” On appeal, however, the Board overruled the ALJ finding that although the tweets were “protected,” because they related to terms and conditions of employ- ment, they were not “concerted,” which requires a showing that they were made for the purpose of “mutual aid or pro- tection.” The Board found that the tweets more closely resembled an indi- vidual’s personal gripes. Several


good lessons are rein-


forced by the Board’s rulings concern- ing a few provisions of Chipotle’s pol- icy. For example, the policy warned employees not to “spread incomplete, confidential, or inaccurate informa- tion.” It also prohibited employees from making “disparaging, false, mis- leading, harassing or discriminatory statements about or relating to Chi- potle, our employees, suppliers, cus- tomers, competition or investors.” The ALJ ruled that that language was too broad and the Board affirmed that rul- ing, despite the “disclaimer” language at the conclusion of the policy that it did not prohibit any activity protected by the National Labor Relations Act. The policy also prohibited the “improper use of Chipotle’s name, trademarks, or other intellectual prop- erty.” The general counsel argued that


ASC FOCUS MAY 2017 |www.ascfocus.org


this prohibition was too broad because it could be interpreted as prohibiting employees from wearing T-shirts with a “Ghostbuster’s style” strike through the company’s logo during a protest of working conditions. The ALJ found that although the company would not be able to ban such T-shirts, the pol- icy language itself was appropriate because “an employer may protect its proprietary interest, including its trademarks and logo.”


The Chipotle case highlights the need to create policies that are nar- rowly tailored so they do not infringe on employees’ Section 7 rights. Hav- ing clearly defined terms and more specific language helps. For example, “proprietary information” or “trade secrets” is narrower than “confidential information.” The case also reminds us that a one-sentence disclaimer can- not cure a policy that contains unlaw- ful provisions. Although the case does not discuss what training Chipotle pro- vided its employees concerning the social media policy, I believe train- ing on social media policies is just as important as training on other human resources policies, such as non-discrim- ination and harassment. Proper train- ing could have prevented the tweets in the first place. For example, employees should be instructed about what is and is not appropriate online behavior, such as separating the professional from the social, avoiding controversial topics, avoiding using social media to vent and avoiding impulsivity. I hope to see you at my session at ASCA 2017.


Marcus M. Crider is a partner at Waller Lansden Dortch & Davis, LLP in Nashville, Tennessee. Write him at Marcus.Crider@ wallerlaw.com.


The advice and opinions expressed in this column are those of the author and do not represent official Ambulatory Surgery Center Association policy or opinion.


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