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Does Your Social Media Policy Violate the Law?

Posted by attorney Alexander Montgomery

Employers are increasingly using social media policies to regulate what their employees say online in an effort to protect their company’s reputation. The National Labor Relations Board (NLRB), a federal agency that enforces the provisions of the National Labor Relations Act (NLRA) has found fault with several of these policies. Many companies have walked the thin line between a policy that protects its confidential information and reputation or a policy that infringes upon an employee’s First Amendment rights and rights protected by the NLRA.

Important Considerations in Drafting a Social Media Policy

A cookie-cutter, over-broad social media policy is not sufficient and may subject your company to unwanted scrutiny. Cookie-cutter, over-broad policies are a common type the NLRB has found to violate the NLRA. Any conduct restricted, regulated, or prohibited in the policy must be clearly defined.

For example, if your policy is designed to prevent your employees from disclosing confidential information through a social media website, clearly define “confidential information" within the policy. The clearer this term is defined, the less likely it is that your policy will be deemed over-broad.

In addition, if your policy prohibits your employees from engaging in specific types of conduct online, it should clearly define the prohibited conduct. A blanket prohibition on “inappropriate comments" or “comments that harm the company’s reputation" are likely over-broad and insufficient. Specific examples should be used. Keep in mind that an employer generally cannot prohibit an employee from making disparaging remarks about a company, its activities, or his or her supervisors or co-workers when that employee is away from the workplace. Any restrictions on remarks made away from the workplace are likely a violation of that employee’s free speech rights. Finally, a social media policy may also violate an employee’s free speech rights if that employee is required to obtain prior authorization from the company before he or she reaches out to the media.

It is also important to note that the NLRA protects an employee’s right to engage in certain types of conduct. “Concerted activity" is one type of conduct protected by the NLRA. Activity is concerted when an employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself." There have been several instances in which the interaction of employees online has been deemed protected concerted activity. Therefore, it is important that a social media policy clearly state that the policy is not intended to interfere or restrict the rights of employees to engage in activity protected by the NLRA.

In an era where online reputation is everything and one Tweet can destroy that reputation instantly, an effective social media policy is critically important. However, a poorly drafted policy can quickly bring a company under the scrutiny of the NLRB, violate an employee’s free speech rights, or both. Make sure your policy is sufficiently drafted to protect your interests without violating the rights of your employees.

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