Social media and networking sites have become commonplace in today's workplace. The most popular sites connect people by enabling them to search for former classmates, colleagues, and friends. Users can leave public messages for their "friends" and create interest groups or "networks." The problem for employers is that employees might be posting negative, misleading, or defamatory information about their company, its employees, or its products on social media sites.
More and more businesses have instituted policies to help protect against posting such negative information on social media sites. A recent case settled by an employer in response to a labor charge illustrates one of the pitfalls concerning such policies. The company had fired an employee for bad-mouthing her boss on Facebook.
The National Labor Relations Board held that the employer's policy, which prohibited employees from "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors," was overly broad because it violated Section 7 of the National Labor Relations Act, which permits employees to engage in "concerted activities for the purpose of ... mutual aid and protection." In settling, the company agreed to revise its social media policy to ensure the protection of employees' rights to discuss working conditions.
Bear in mind that, even in a non-union workplace, employees have the right under the NLRA to share information regarding working conditions. Before taking disciplinary action against employees for their social media activities, consider whether the employee's conduct could arguably constitute protected concerted activity.
To ensure that your social media policy does not violate employee Section 7 rights, we'd recommend following these guidelines.
Recommended social media policy items
- Employees may not use company equipment or systems to "twitter" or log onto social networking sites.
- Twittering on personal cell phones, Personal Data Assistants (PDAs), etc., may not interfere with working time.
- Employees should not tweet or post information on any social networking site on behalf of the employer without approval by management.
- Employees may not use company logos or trademarks in tweets or twitpics or any other social networking site without company authorization.
- Employees may not promote the company's products or services on any social networking site or online message board without prior management authorization and disclosure of their employment relationship.
- Employees may not post information on any social networking site that disparages the company's products or services, contains false statements, or breaches the employer's confidentiality policies.
Employees who have any information on their social networking site about the company should provide a disclaimer on their profile page that the opinions are their own and not those of the company.
Employers in media or publishing businesses may also consider specialized protections for digital content and records, such as Magnetic and Optical Recording Media Insurance and Book Publishing Insurance Overview, to help protect stored media and publishing operations. If you need help reviewing policy language or coverage options, you can talk to an agent.
Frequently Asked Questions
Can an employer discipline an employee for social media posts?
An employer can discipline posts that violate clear, lawful company policies, but must be careful not to punish protected concerted activity related to workplace conditions.
What is protected concerted activity?
Protected concerted activity generally involves two or more employees, or one employee acting on behalf of others, discussing working conditions or seeking to improve wages, hours, or other terms and conditions of employment.
How should employers write social media policies to avoid legal problems?
Policies should be specific, narrowly tailored to legitimate business interests, and explicitly preserve employees' rights to discuss workplace issues when appropriate.
Should employees be allowed to use company logos or identify their employer online?
Employers commonly restrict use of logos and require disclosure when employees post on behalf of the company, while allowing personal opinions with a disclaimer that they are the employee's own views.