Social media is modern society’s most popular form of communication, but it is a double-edged sword for employers. The average employer might use social media to learn background information about applicants; get the scoop on what competitors are doing; keep their finger on the pulse of the marketplace and trends; and learn who employees may be contacting.
Nonetheless, there are risks, as well. Many companies require or allow employees to make company-affiliated social media accounts, and it may become unclear who owns the account. Employees may use these accounts to make disclosures that damage customer relationships either by revealing information they should not or by disparaging the company’s products. Along those lines, if employees are disparaging another company or their co-workers, then liability for libel presents itself.
What Laws Are Implicated When an Employer Tries to Control Employee Social Media Use?
Section 7 of the National Labor Relations Act (NLRA) provides that “employees shall have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The “concerted activities” Section 7 protects are activities that address the terms and conditions of employment. Yes, this law still applies even if your workforce is not unionized, and it applies to employees’ communications on social media. Additionally, even a single employee can engage in protected concerted activity if the employee is acting on behalf of other employees or trying to induce group action. However, note that an employee’s comments on social media generally are not protected if they are simply general gripes that are not made in relation to the conditions of employment.
Thus, when an employer is thinking about creating a policy to address social media use, it must be cautious so the policy is not so sweeping that it prohibits the kind of activity the NLRA protects (e.g., discussion of wages or working conditions). Section 8(a)(1) of the NLRA prohibits employers from maintaining any rule or policy that “would reasonably tend to chill employees in the exercise of their Section 7 rights.”
How Can an Employer Address Social Media Use Without Running Afoul of the NLRA?
Obviously, rules that explicitly restrict protected concerted activity will violate the NLRA. Additionally, a rule that an employee could reasonably construe to prohibit protected concerted activity is not allowed. Companies most often run into trouble when a policy is ambiguous (which is often the case when it is overbroad).
- Overbreadth Example: Don’t Broadly Prohibit “Insubordination” or “Lack of Respect”
For example, in NLRB v. Hooters of Ontario Mills, the company had a rule that prohibited insubordination to a manager or lack of respect. An employee took to social media to post disparaging comments about their manager on social media, and was fired as a result. In determining that the policy and resulting termination violated the NLRA, the judge stated that had the company limited the policy to prohibiting conduct that did not support the company’s “goals and objectives,” it may have been permissible.
- Overbreadth Example 2: Don’t Broadly Prohibit Profanity
Similarly, in NLRB v. Professional Electrical Contractors, the company had a policy that prohibited “boisterous or disruptive activity in the workplace.” According to the NLRB, rules that do not define prohibited abusive or profane language are patently ambiguous. By comparison, a rule that prohibits “profane or abusive language” is lawful.
- Overbreadth Example 3: Don’t Prohibit “Gossip”
In NLRB v. Laurus Technical Institute, the company maintained a policy that prohibited “gossip about the company, an employee or customer,” which included (a) “[n]egative or untrue or disparaging comments” about others; (b) “repeating information that can injure a person,” and (c) “repeating a rumor about another person.” The employee was terminated for disruptive behavior surrounding the layoffs of co-workers and a supervisor.
- Lessons Learned
Given the examples above, policies that broadly prohibit conduct that is “defamatory,” “disparaging,” “disrespectful,” or “disruptive” likely will be considered overbroad and unlawful as far as the NLRB is concerned. Instead, your policies should prohibit the use of social media for illegal purposes such as discrimination, gambling, or harassment—the NLRA does not protect conduct that is unlawful. Moreover, you should require that your employees comply with all policies, such as trade secret, EEO, and so forth.
Creating Your Company’s Social Media Policy
The first consideration in creating your company’s social media policy is whether you want to permit employees to use social networking sites at work. Let’s be realistic: Banning all social networking at work probably isn’t feasible, mostly because a blanket ban is going to be difficult to monitor and enforce. If you do prohibit social networking altogether, there are a number of ways to monitor it, including installing software to block certain sites. Your method will depend on how much time you want to spend watching what your employees do online. An alternative to a blanket prohibition is to allow employees to use social media for limited, work-related conduct, or to permit limited personal use.
Another serious consideration is whether you want to allow employees to identify with your business when they network online. If you require that employees not affiliate with your business, you lose the networking and marketing potential, but then you decrease the chance that an employee portrays your company in a negative light. If you do allow employees to use social media to conduct business, it is a good idea to require employees to get company approval first.
Katherine P. Sandberg is an associate with law firm Hunton Andrews Kurth LLP in San Francisco. She represents employers in a variety of employment law matters. She may be reached at ksandberg@huntonak.com.
