Social Media in the Workplace: Are Your Policies Legal?

With the rise of technology and accessibility of information, social media is a constant concern for companies. To that end, many employers implement social media policies to prevent workers from publically criticizing their company.

While the desire to control the company’s brand is a legitimate business concern, employers may not go as far as to infringe upon the rights of their employees.

Although the application of federal labor regulations is not always clear-cut, the National Labor Review Board and the Office of General Council provide guidance based upon past rulings and current interpretations.

A few things we do know:

• A disclaimer within the policy that states the National Labor Relations Act controls in the event that a policy is incompliant with federal regulation will not cure the employer’s illegal policy.
• Although an employer may decide which employees will serve as designated spokespeople for the company, management cannot require a social media disclaimer on each employees’ account which states the opinions expressed do not reflect the employer’s opinions.
• A company may request that employees who have complaints about company policy seek internal channels of problem resolution. However, a company may not discipline an employee who voices workplace concerns on a social media account.
• When monitoring is permissible, employers should provide clear, concise and well-defined policy statements.
  • For example, a general policy that prohibits employees from positing defamatory content about the company is too broad. However, the Office of General Council approved a social media policy that specifically prohibited vulgar, obscene, threatening and intimidating speech towards coworkers.

Please note, the examples provided reflect federal provisions, not state law. It is possible that your state implemented additional privileges to the workforce.

For example, federal legislators attempted to pass regulations that protected employees’ social media log-in information from inquiring employers. Although the proposal failed at the federal level, a growing number of states have taken measures to protect employee privacy in this regard. In these states, employers may not require username and password information for company monitoring. Keep these jurisdictional distinctions in mind as you review your social media policy.

As you can see, the subject matter has many nuances in application. The topic will continue to evolve as new complaints arise. Monitoring your social media policy and adapting to new governmental mandates is crucial to your company’s compliance.