By Candace A. Bankovich and Celia M. Pauli
We live in a world where “live-tweeting” and “Facebook Live” are now common terms, and the term “viral” has taken on a whole new meaning. The ability to broadcast opinions and share photographs in real time creates issues for employers that extend well beyond the “workplace.” Employers that do not have a social media policy may leave themselves open to public relations disasters, risks for leaks of confidential information, or discrimination and retaliation claims — to name a few issues.
A clear and detailed policy provides guidance to employees and protects the employer. If employees understand expectations, they will be less likely to violate the policy, which may avoid public relations disasters stemming from inappropriate or inflammatory posts. Likewise, if an employer is concerned about protecting confidential or proprietary information, a social media policy should: (1) specifically define what is confidential or proprietary; and (2) outline the consequences of a violation. Further, policies with examples that prohibit posting statements that are disparaging, false, harassing or discriminatory help to create a workplace with defined guidance for employees and if necessary, can assist employers in defending employment claims.
Although a detailed social media policy can offer employers protections, employers should be cautious about running afoul of limitations imposed by the National Labor Relations Board. Employer policies should not be so sweeping that they prohibit the kind of activity protected by federal labor law, such as the discussion of wages or working conditions.
For example, in one case, the NLRB found that employees were engaged in “protected concerted activity” online when they discussed terms and conditions of employment with fellow employees. Here, an employee posted to Facebook surveying her co-workers on the issue of job performance to prepare for an anticipated meeting with her supervisor, and the employee was terminated due to the post. The NLRB held that the discussion was initiated by the employee as an appeal to her co-workers for assistance. Therefore, the resulting conversation about job performance issues was protected concerted activity.
Additionally, to withstand NLRB scrutiny, social media policies must be specific and should contain examples. The following are instances where the NLRB found social media provisions to be unlawful as they were overly broad.
• One provision prohibited employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity.
• Another unlawful provision prohibited any communication that constituted embarrassment, harassment or defamation of the employer or employee.
• Similarly, the NLRB ruled that a policy barring statements that lack truthfulness or may damage the reputation or goodwill of the employer, its staff, or employees to be overly broad and therefore unlawful.
In all of these instances, the provisions were not specific enough either by failing to define terms or to give examples.
Conversely, an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. For example, an employee posted expletives on Facebook and complained that the employer did not care about its employees; and the employee was terminated due to these posts. The NLRB found that the employee’s posts were merely an expression of her individual grievance because they were due to her frustration about an interaction with her supervisor and she had no particular audience in mind when she made the posts.
Dos of social media policies
• Do include the social media policy in the employee handbook.
• Do define “social media” broadly to incorporate all platforms of social media, even those that may not yet be in existence. Social media and technologies are constantly evolving; and a broad definition will allow a social media policy to withstand the test of time.
• Do emphasize that employees are expected to follow the same code of conduct on the internet and their social media accounts as they are expected to follow at work.
• Do provide examples of unacceptable social media posts in the policy and during orientation to avoid any confusion as to what the employer expects.
• Do define “confidential” and “proprietary” information. Be sure to make these definitions specific to the company’s business to avoid any argument that the definitions, and therefore the policy, is overly broad.
• Do consider your employees’ privacy rights.
Don’ts of social media policies
• Don’t have a blanket policy prohibiting employees from using any and all social media accounts.
• Don’t monitor employees’ social media accounts or applicants’ accounts. Employers should typically avoid “friending” a subordinate employee or an applicant. This prevents inadvertent discovery of an individual’s characteristics that may be protected by law.
• Don’t stifle company culture. Positive posts about a company or its employees can have an encouraging effect on employees and the employer’s image.
Overall, a good social media policy is balanced. It should remind employees to consider whether they want to be the next viral sensation, provide guidance about the employer’s expectations and offer employers protection.•
• Candace Bankovich ([email protected]) chairs Lewis Wagner’s Labor and Employment Practice Group and Celia Pauli ([email protected]) is a member of Labor and Employment Practice Group. The opinions expressed are those of the authors.