#workplacewhining — How Much Can You Do About Your Employees’ Use Of Social Media?
By Elaine Inman Hogan
Most employers are aware that they need to have a social media policy. But what should it cover? And how much of a say can you have in your employees’ behavior on social media? It isn’t always crystal clear, but there are some general guidelines to go by when instituting a social media policy for your company.
First, make sure you have one. A large number of your workforce is active on social media. No matter how big or small your company, you need a social media policy.
Second, avoid instituting an overly broad social media policy. Employees posting complaints that can be categorized as concerted activity may be protected from being disciplined for this type of conduct. The National Labor Relations Act (NLRA) is interpreted to give all employees (not just those in unions) the right to discuss the terms and conditions of their employment at a reasonable time and in a reasonable place and manner.
Blanket policies that generally prohibit statements that are damaging to the employer or defame or disparage the employer or its representatives have been struck down. Similarly, the termination of employees for posting comments on social media accusing an employer of wrongdoing related to tax withholdings (even including obscenities) has been found unlawful.
Third, incorporate some key provisions in your social media policy. A social media policy should prohibit employees from discussing trade secrets or confidential information, including confidential information regarding customers or clients. You should also limit employees’ use of social media during working hours—or using company equipment for social media purposes (cell phones, tablets, laptops, etc.). Your policy should specifically prohibit online harassment, discrimination or bullying of other employees.
You can also prohibit employees from speaking on your company’s behalf without authority and request that employees make clear that any posts related to your company do not reflect the views of the company.
Finally, whether within your social media policy or elsewhere, your employee handbook should also specifically inform employees that none of your policies are intended to restrict their rights to discuss or act together with coworkers to improve wages, benefits or working conditions or in any way restrict their rights under the NLRA.
Just like the landscape of social media is constantly changing, so is the law relating to it. Employers should make the development of a social media policy a high priority and commit to a periodic legal review of their policies. Or in other words, #updateyourpolicy.
Elaine Inman Hogan is a partner with Crenshaw, Ware & Martin, P.L.C. She serves as the Practice Group Chair for the Employment Law Group and focuses her practice on assisting employers and management in the areas of compliance and litigation. Subscribe to Elaine’s Employment Law Blog at VaEmployerLaw.com.