Rare is the business entity that is completely detached from one form or another of social media. Indeed, a significant portion of businesses today directly utilize the benefits offered by social media platforms such as Facebook and Twitter. And even when a business does not itself engage in social media postings or tweets, you can rest assured that its employees do and will! So how can a business ensure that the messages posted on its social media platforms, as well as those posted about it by its employees on theirs, help promote the image it desires rather than hurt? How can employers make sure that their confidential information, as well as that of their customers, is not posted electronically for the world to see?
Many employers have attempted to curtail the risk of negative postings and information leaks by crafting social media policies that restrict what can be posted by employees (as opposed to prohibiting employees from using social media while on the job or using social media to evaluate and investigate employees or potential employees). Endless examples of these policies can be found online and within employee handbooks across the country. They are frequently accompanied by a warning that failure to comply with the employer’s social media policy may result in disciplinary action up to and including termination. Unfortunately, however, such policies can cause more problems than they solve and can create unforeseen legal headaches for employers.
Over the past few years, social media policies have come under close scrutiny from the National Labor Relations Board (“NLRB”), the agency charged with the oversight and enforcement of the National Labor Relations Act (the “Act”). Although the Act is more commonly thought of in situations involving unions and activities related to their organization, the Act’s reach is quite broad, and most private sector businesses are, in fact, subject to its regulations (even where they have no connection with a union)! As such, most employees are covered by the protections extended under the Act, which protections include the right to “engage in concerted activities for the purpose of . . . mutual aid or protection.”
Using non-legal jargon, this means that employers cannot — either directly or indirectly — restrict, infringe, impair or take any action which might chill the perceived right or ability of employees to communicate regarding, for example, their working conditions or the terms and conditions of their employment when such communications are made to address and improve such conditions (as opposed to unprotected venting or griping). Examples of broad employer social media policies found to be unlawful include: (a) prohibiting “offensive, demeaning, abusive or inappropriate remarks” by employees on social media; (b) requiring employees to use internal resources to resolve conflicts rather than “airing their grievances online;” and (c) prohibiting employees from posting any information regarding their employer.
With such examples in mind, one might reasonably question whether it is possible for an employer to ever have an enforceable social media policy capable of protecting its needs and whether an employee can ever be fired for its online postings. Thankfully, the answer to both questions is yes! So what, then, should employers do? First, “form” policies found online should never be used, and, given the number of decisions and opinions released by the NLRB within the past year, older policies should be carefully re-examined. Second, think carefully about the needs and concerns of your business, as well as the reason(s) behind or justification(s) for any restrictions you would like to have in place. Finally, work with an experienced labor and employment attorney to help revise or create a policy that can meet the legitimate needs and interests of your business while complying with the Act and rights of your employees.