Social Media Policies – What Employers Can and Cannot Do

As social media continues to evolve, employers’ rules governing its use in and out of the workplace by employees must continually adapt, not only to keep up with the technology itself, but to ensure those rules are in compliance with the law. The challenge for employers is that the law is ever evolving to keep up with the ever changing technology. Compliance with the law can therefore be a moving target for employers, requiring a great deal of due diligence and good legal counsel.

One of the more recent hot topics has involved whether employers can regulate what their employees say on Facebook. Specifically, the question has been addressed as to whether employees can be prevented from saying derogatory things about their employers on social media like Facebook. The National Labor Relations Board (NLRB) has stated that employers have a right to conduct “concerted activity” with fellow employers. Translated into laymen’s terms, this simply means that employees have the right to discuss their working conditions and compensation with one another and that employers are not allowed to stop it without violating federal law which could lead to stiff penalties.

The big dilemma for employers is defining what constitutes “concerted activity” because it has not been clearly defined by the NLRB. Does this mean employees have the right under federal law to say disparaging things about their employers online? At this point, the answer is unclear. What is clear is that employers cannot make blanket rules prohibiting employees from discussing their work conditions, compensation, or the like on social media like Facebook. Doing so may very well put a company at risk of law suits and harsh federal penalties.

If you’re an employer, you would be well advised to check your official company policies to make sure they don’t contain overreaching social media policies. If you find that they do, it’s in your best interest to make immediate adjustments to ensure you’re in compliance with federal labor law. If you have questions, consult your attorney. An ounce of prevention goes a long way with this issue.

Wade Hardie, JD, MBA
MINES Corporate Counsel

Company Drug Policies and Medical Marijuana

A hot topic in the news recently that has confused many people has been the issue of medical marijuana.  In the United States, federal law prohibits the consumption and distribution of marijuana, but many state laws (i.e. Colorado, California) say that distribution and consumption can be legal if it’s for medical purposes and if certain stipulations are followed.  For states that have legalized the use of medical marijuana, it raises two very important questions; is it legal to consume marijuana and can employers prohibit their employees from consuming it even if it’s for medical purposes?

Legal or Not?
There are two primary types of statutory laws in the United States, state and federal, both of which are enforceable.  A person who violates one but not the other can still be criminally prosecuted.  So given that fact, what happens if a person consumes marijuana legally under state law, but by doing so, violates federal law?  The answer is that he can still be prosecuted under federal law.  The caveat is that for the time being, the federal government is choosing not to prosecute legitimate medical marijuana users who reside in states that have legalized its use.  So although a medical marijuana user is violating federal law, he won’t likely be prosecuted if he resides in a state that has legalized its consumption.

Company Drug Policies
But what if an employer prohibits its employees from using all illegal drugs and that employer resides in a state that has legalized the use of medical marijuana?  Can that employer prohibit its employees from consuming medical marijuana?  The answer is…it depends.

Medical marijuana is still an illegal drug, even in states that have legalized its use because marijuana consumed for medical purposes still violates federal law.  Therefore, in all fifty states in the U.S., any company policy that prohibits the use of all illegal drugs will technically include marijuana regardless of whether it resides in a state that has legalized the use of medical marijuana.  However, whether or not an employer can prohibit its employees from using medical marijuana in a state that has legalized it depends on that state’s law.  For example, Colorado does not have any laws that prevent employers from terminating employees because they use medical marijuana.  But Arizona recently passed legislation that says an employer is not allowed to discriminate or terminate employees because they use medical marijuana (see http://www.natlawreview.com/article/arizona-employers-must-be-ready-new-medical-marijuana-use-law).

The bottom line is this is an evolving area of the law and there are still many unknowns and grey areas.  What is clear is that consumption of medical marijuana in the U.S. still violates federal law and employers may or may not have the ability to ban it’s consumption by their employees depending on their state law.  If you are an employer who resides in a state that allows the use of medical marijuana, it would be advisable to talk to an attorney before implementing any company policies that completely ban the use of marijuana to make sure you’re in compliance with your state law.

Wade Hardie, JD, MBA
MINES Corporate Counsel