Is Your Social Media Policy Legal? Protect Yourself & Your Employees

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You want to encourage your employees to be social ambassadors and share your brand with all their friends and followers. But you’ve also heard horror stories of employees taking to the social networks to post offensive, obscene, and inappropriate comments and actions relating to their jobs. (Domino’s Pizza and Taco Bell, anyone?) As you work to strike a balance between inspiriting positive social conversations and limiting negative or inappropriate comments, you also need to consider where the law comes into play. What can you legally prohibit your employees from doing? What social media activities can you protect yourself against as an employer, without infringing on your employees’ rights?


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Creating a social media policy is one way to outline appropriate and encouraged methods for using social media as it relates to the company. In order to ensure that your social media policy is not only the best for your company’s social media practices, but also complies with employee rights, it’s important to stay up-to-speed with the latest findings from the National Labor Relations Bureau (NLRB) as they pertain to social media.

What is the NLRB?

The National Labor Relations Bureau is an independent federal organization created to protect union and non-union employee rights to join together to improve their wages and working conditions. The NLRB works to ensure that the laws outlined in the National Labor Relations Act (NLRA) are upheld. Enacted in 1935 to protect employee and employer rights, the NLRA provides definitions of who and what the NLRB is protecting, as well as what it deems to be unfair labor practices.

What does the NRLB have to do with social media? 

In 2010, the NLRB started putting more of a focus on work-related conversations taking place on social media platforms like Facebook and Twitter. Since that time, the Office of General Counsel has been analyzing company social media policies and potential infringement on employee rights as they relate to social media.

What does this mean for my company?

Social media is a powerful tool, and can have major impact on your brand – and not only from what your company posts on its own profiles. Just as your customers have free reign to say what they will about your products and services, employees have the ability to post as well. But can employees say anything they want about the companies they work for online?

It is vitally important for all parties involved to know what falls within “protected” activity that might take place in the social sphere. For example, according to Section 7 of the NLRA: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

As such, employees have quite a bit of power when it comes to social media. You cannot legally forbid them from posting about their jobs online, nor can you restrict them from using your logo or company name when discussing anything that could be viewed as a concerted activity. If they are publicly bashing fellow employees, employers, or company for no apparent “concerted activity” however, you are within your rights as an employer to reprimand them.

How can I be sure my company’s social media policy is up to par?

Of the three published memos the NLRB has released regarding social media and employee rights, the second and third deal specifically with the language used in company social media policies.

The language used to outline prohibited social media activity is often found to be over-broad and unlawful as it can lead employees to believe they are unable to discuss work conditions, an infringement on their Section 7 rights. So, what can you do?

Follow these 5 steps to ensure your company’s social media policy fits the bill:

  1. Do your homework. While most of the social media policies reviewed by the NLRB have been found vague and over-broad, a few have passed through the watchful eye unscathed. One such policy is mentioned in the NLRB’s May 30, 2012 memo. The NLRB found that this revised policy clarified and restricted the scope by including examples of clearly illegal or unprotected conduct, which could not be reasonably construed to include protected activity, and was therefore found to be lawful. The full social media policy is included at the end of the NLRB’s memo, which you can view here: OM 12_59 Report of the Acting General Counsel Concerning Social Media Cases.
  2. Language is important! In most released cases where the NLRB has examined social media policies and found them “over-broad” employers have failed to define in detail what constitutes “confidential” and “proprietary” information. Make sure you are specific when it comes to how exactly one should or should not use the company’s name or logos and provide sufficient examples of egregious conduct that will not be tolerated. Your wording should not be ambiguous or limiting in any way that could lead employees to feel as though their rights to protected activities are being infringed upon.
  3. Are your employees clear on their rights? The NLRB’s main concern with social media policies is that the language used should not “chill” an employee’s understanding that they are free to exercise their Section 7 rights to protected concerted activities. While some kinds of work-related conversations are okay for employees to participate in online, others are not. For instance, employees have no protected right to disclose trade secrets, nor are they protected in cases where their language is clearly obscene, offensive, and in no way working toward better work conditions or pay.
  4. Offer training and support. A major reason employees take to social media to air grievances or speak negatively about their company is because they don’t feel respected or heard while they are at work. Letting your employees know your door is always open to hear their concerns and providing them with the resources they need to feel safe, empowered, and respected will make for a more positive work environment, and will likely influence the caliber of conversation taking place online.
  5. Consult with a lawyer to look over your social media policy. While it may be an added expense for the company, consider the cost of having to go through a trial if your SMP is found to be unlawful. Having an employment law attorney who is familiar with the latest cases and rulings surrounding social media and employment look over the language you are using will help ensure you are lawful in what you do and do not allow your employees to say on social media.

 

The best way to safeguard yourself against an NLRB investigation and rogue employees, angry posts, or other inappropriate social media behavior is to provide your staff with a social media policy that clearly outlines your expectations, resources for support, and in no way prohibits an employee’s right to protected concerted activity. When your employees see that you are respectful of their rights, they’re much more likely to be respectful of the company they work for – it may even turn them into stronger brand ambassadors!

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