Steps Employers Can Take To Reconcile Workplace Goals and Employees’ Activity in Social Media

Paula Lopez, April 2, 2014.

Employers are not blind to employees’ use of social media in and out of the workplace and they have a business interest in protecting confidential information, brand/image, employee morale and productivity, and insulating themselves from legal liability. As a result, employers should establish a social media policy regarding their employees’ use of employer-issued devices and their social media activities.

Creating a comprehensive social media policy is important. Such a policy should specifically identify permitted and prohibited conduct, without being overly restrictive, and should address the following considerations:

1. Specifically define what social media activities are covered by the policy and develop rules about the use of social media during business hours.
2. Give notice to employees that they should have no expectation of privacy with respect to use of any employer-issued devices (desktop computers, laptops, mobile devices, tablets) and the employer’s information system, including the exchange of electronic communications (e-mails and text messages) even if made from personal accounts when viewed through such devices.   The policy should make it clear to employees that such communications could be monitored, stored and used by the employer.
3. Make sure the policy complies with the guidelines set out by the National Labor Relations Board and provide clear examples of prohibited activity so that, when read in context, employees could not reasonably construe the rules to prohibit Section 7 activity under the National Labor Relations Act (see full discussion below).
4. Remind employees that they are responsible for all content they publish on social media sites and are required to adhere to applicable laws (i.e., intellectual property laws).
5. Prohibit disclosure of confidential information about the employer’s business, co-workers, clients and other parties the employee interacts with as part of the employment relationship. Be specific about what constitutes private and confidential information and provide examples so that it is clear to the employees that discussions regarding the terms and conditions of employment are not prohibited.
6. Reiterate workplace etiquette and the employer’s anti-discrimination policy’s application in the social media context.  Prohibit the use of discriminatory remarks, harassment, bullying, threats of violence, obscene language or similar inappropriate or unlawful conduct. Provide examples of the types of restricted postings.
7. Restrict employees from representing themselves as spokespersons for the employer, unless expressly authorized to do so by the employer, and require that when commenting on the employer or matters related to its business they disclose that the work for the employers and specify that it is their opinion. A good idea would be to require the inclusion of a disclaimer by the employee when online activities and comments could be imputed on the employer.  An example of such a disclaimer would be:  “The postings on this site are my own and do not represent the position, strategy or opinions of [Employer]”.
8. Establish clear and definitive consequences for violating the policy. In doing so, employers must apply and enforce the policies equally as to all employees and clearly communicate the consequences for violating the policies.

It is not enough just to have a social media policy, employers must ensure that all employees and management acknowledge the policy and are trained on it.  Best practice is to have the employees sign off on the policy and to retain a record of such sign-offs.  In addition, given the ever-changing social media sites and applications that are becoming available, it is important for an employer to update its social media policy to reflect current trends and with each update to obtain its employees’ acknowledgment.

Special considerations should be taken by employers to ensure that their policies are not overly broad that they can be interpreted to violate their employees’ rights under Section 7 of the NLRA to engage in concerted activity, by preventing employees from exercising their right to communicate with each other for the purpose of improving wages, benefits or working conditions.  The NLRB has become very active in addressing social media issues in the work place, in both union and non-union settings.  In recent decisions, the NLRB ordered the reinstatement of a party bus driver who was terminated for posting Facebook messages criticizing the company’s employment practices and found that the postings were “a continuation of [the employee’s] prior organization activities.” In another case, the NLRB ordered the reinstatement of several caseworkers who had responded to a Facebook post asking co-workers to comment on another co-worker’s threat to tell their boss that they were not working hard enough, finding that their conduct was a type of “concerted activity” for “mutual aid” protected by the NLRA.

A further consideration for employers in designing a social media policy is to determine how social media networking sites will be used in making hiring decisions.  While many states prohibit employers from requesting/requiring account passwords to access an applicant’s and/or employee’s social media account, access and review of publicly available information from social media sites is permitted. An employer’s review of an applicant’s social media activity has become a normal part of the interview process.  In doing so, it is important for employers to establish clear policies for reviewing social networking sites to gain information on job applicants. In addition, employers should disclose to applicants through hand books, job applications, interview forms, and/or permission forms for background checks the scope and extent of the company’s policy in reviewing social media networking sites as part of the hiring process. To the extent that employers’ review of social media networking sites could expose them to information that could give rise to discrimination claims if the applicant is not hired (i.e., information showing that the applicant is part of a protected class of individuals), an employer should consider having its human resources department or a designated individual conduct the social media review and redact such information before forwarding its finding to the individuals making the hiring decisions.  Lastly, if an employer decides that it will review social media activity as part of the hiring process, it should ensure that all job applicants undergo review and not just a selected few.