IS YOUR SOCIAL MEDIA POLICY ILLEGAL?
“Working late again. Can’t believe my boss is such a jerk.”
“Here we go again . . . another round of layoffs! Let’s see how many people are on the chopping block this time!”
Can you guess which one of those social media status updates is illegal? Depending on where it’s posted, they both have the potential to be illegal. On the other hand, based on rulings from the National Labor Relations Board, they could both be perfectly legal.
Social Media Policies and Labor Relations
As social media has grown, experts have called upon organizations to develop social media policies to protect themselves against employees who may not understand the harm that a well-placed comment can do to individual and corporate reputations. A simple tweet about layoffs could have a devastating effect on a publicly traded company, for example.
The potential for negative publicity or even legal action has led many companies to develop social media policies prohibiting employees from making certain types of posts online, either on their personal accounts or the company accounts. Such policies might include a general prohibition from saying anything at all about the company, while others might only prohibit those posts that could be viewed as defamatory, negative or offensive.
The problem is that many social media policies go too far, according to the NLRB, and restrict employees’ right to free speech or to engage in activities that have the potential to improve their working conditions. In addition, too many social media policies are vague. For example, they may prohibit the sharing of confidential information without defining what constitutes “confidential,” or fail to provide examples of what’s not allowed.
It’s important, therefore, for business owners and managers involved with the development of social media policies to not only understand the NLRB’s rules but to review existing policies to determine whether they meet the guidelines or whether adjustments are necessary. Ask the following questions, and if you can answer “no” to any of them, revise the policy to bring it into compliance with the law.
- Does your policy specifically state that it is not intended to infringe on employee rights to free speech?
If not, it needs to, as required by law.
- Does the policy specifically define what constitutes confidential information?
Companies cannot enact an across-the-board prohibition on employees revealing any information about their employer, customers or policies. However, you can legally designate certain facts as confidential; for example, it’s reasonable to prohibit employees from disclosing certain salary figures, internal documents or strategic plans.
- Does the policy define what constitutes negative posts?
Calling your boss a jerk is one thing, but making posts that imply bodily or emotional harm, are obscene or malicious and make defamatory statements or amount to harassment or bullying is something entirely different. The policy must specifically define what constitutes unacceptable posts, and provide examples.
- Does the policy provide guidelines on how an employee may use the company name and/or trademark?
The NLRB discourages employers from broad prohibitions regarding the mention of the company name or trademark, but instead recommends developing guidelines on acceptable use. These guidelines might include a requirement to include disclaimers on personal blogs or posts related to work, and prohibitions against linking to the employer site from personal social media accounts or using corporate email addresses to register for sites.
- Does the policy prohibit or limit an employee’s right to communicate with the media?
The NLRB prohibits companies from including provisions that prevent employees from talking to the media, as such prohibitions could have a “chilling effect” on employee efforts to improve their working conditions by getting outside help. However, it is acceptable for employers to forbid employees from presenting themselves as a spokesperson for the organization without prior authorization.
- Does the policy include specific prohibitions on the connections that employees can make on social media, i.e., discouraging employees from “friending” their bosses or clients?
While not specifically illegal, per se, the NLRB discourages companies from including such provisions as it can affect the working environment. However, an employer can encourage employees to be cautious when making connections and when choosing what to share.
- Does the policy require employees to get permission before posting?
The only time that employers can require permission prior to posting is when an employee is posting to a corporate account as a representative of the company. Otherwise, requiring permission to post is seen as an infringement on a protected activity (speech).
- Does the policy provide specific examples of prohibited behavior?
The NLRB strongly recommends that social media policies include specific examples of what constitutes prohibited behavior on social media. In court cases, those policies that include vague language have been more likely to be overturned than those that included specific language and examples. Spell out what’s allowed and what’s prohibited as clearly as possible to prevent misinterpretation.
Social media policies should not be designed to prevent employees from connecting with others and sharing information and ideas. While they need to protect your company from harm, they should not infringe on your employees’ right to free speech, especially on their personal pages. Take steps to construct a policy that meets everyone’s interests while still encouraging open and honest communication, and you’ll stay within the boundaries of the law.