Are employers violating labor laws by creating, restricting and enforcing Social Media Policies within the workplace?
The future of technology has become the reality of today. Social media platforms and websites, such as Facebook, Twitter, Instagram and Snapchat, are being used everywhere. According to a Business Insider article published in August of this year, https://www.businessinsider.com/the-social-media-demographics-report-2017-8, 2.8 billion people, or 37% of our population, is on some form of social media.
Social media is not only being used to communicate with others, but it is also used to sell and promote products and services, as well as to market and advertise businesses. As a result, more businesses are developing Social Media Policies with strict guidelines for employees to follow regarding business related social media postings, pictures and videos. By implementing social media policies, employers are able to control what employees are able to post on social media sites about their company; therefore, reducing exposure to risk, loss of and/or disclosure of confidential information, discrimination claims, harassment and reputation defamation.
Employers are able to protect the best interest of their business by creating Social Media Policies; however, the National Labor Relations Act (NLRA) protects the rights of employees who act together to address wages and work conditions, also known as “protected concerted activity.” The NLRA protection also applies to work related conversations regarding this subject on social media. The NLRA states it is legal for employees to discuss working conditions and wages on social media; however, it does not allow employees to threatening comments about their co-workers or manager on social media, nor does it allow the employee to make racist or discriminatory statements. As a result, business owners may create strict social media policies, as long as the policies do not violate an employee’s right under the NLRA.
Can employers control what their employees are posting on private social media accounts (Facebook, Twitter, Instagram)?
The answer is YES, within reason. Since social media posts can greatly affect the success of a business, employers have developed policy guidelines for employees to follow and understand how their voice on social media can directly affect the business. Some employers are also restricting what employees can post on their private social media accounts when considering comments that may be construed as offensive, discriminatory, racist, threatening in nature, and more. The big question is, what can business owners include in these policies to ensure they aren’t violating federal labor laws by restricting employees’ rights?
Here are some examples of what employers MAY include in a social media policy:
- Information about the business – (Any information that may violate the company’s Confidentiality and Non-Disclosure and Company Information and Property Policies). Employers may prohibit their employees from posting confidential information about the business including, trade secrets, business operations, financial information, customer/client information, information regarding suppliers, subcontractors and/or dealers, etc.
- Copyrights, trademarks, logos, etc. – Employers may restrict employees from posting company copyright information, trademarks and logos on private social media accounts; however, employers may allow employees to link their professional/work information to the company. For example, employees may post professional information such as, Company Name and logo, link to company website, Job Title, etc., on professional websites like LinkedIn.
- Statements, photos or videos regarding the business – (Any information that may violate the company’s Business Ethics and Professional Conduct Policy). Employers are encouraged to enforce professional standards for employees who use social media when representing the company for business use, as well as, personal use. Employees should always act in a way that will merit the continued trust and confidence of the public on social media.
- Statements, photos or videos regarding co-workers, customers, clients, vendors, or statements in general. – (Any Information that may violate the company’s Non-Discrimination and Anti-Harassment Policy). Employers may prohibit employees from posting on their private social media accounts any statements, photos and/or videos that may be construed as discriminatory, harassing, or offensive by reference to race, national origin, gender, religion, age, disability, sexual orientation or any other legally protected criteria.
- Private Social Media Accounts – Employers may prohibit employees from using their business email address to register for private social media accounts.
- Social Media use while at work – Employers may prohibit employees from accessing private social media accounts while at work regardless of the device used.
Can an employee be disciplined and/or terminated for posting an inappropriate comment on their private social media account?
Employees who breach the company’s Social Media Policy, and ARE NOT engaging in protected concerted activity, can be disciplined and/or terminated for posting an inappropriate comment on their private social media account; however, employers should consider the following before disciplining:
- Is the post protected in any way?
- Is the post about working conditions, wages, hours or benefits?
- Is the information confidential and protected company information?
- Is the post threatening or defaming to any person, work or not work related?
The company’s Social Media Policy should specifically outline what course of disciplinary action will take place if an employee breaches the policy (counseling, verbal or written warning, probation, etc.). Typically, employers should follow the company’s Corrective Action Policy when disciplining an employee for a breach in social media policy.
In summary, employers are encouraged to protect the interest of their business by creating and implementing a Social Media Policy within the workplace. The policy should include specific guidelines for business and private social media comments, pictures and videos. The policy should also include consequences employees must face if they break this policy.
This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.