Social Media Policy 101: Don’t Restrict Concerted Activity

Social media is a part of everyday life for millions of people, and organizations have found that it has infiltrated working life. Employers are learning they need to manage the impact social media has on the workplace, both the positive and the negative. For example:

• Employers fear that employee personal social media use will be a distraction and decrease productivity.
• There is a concern that what employees say on social media will reflect poorly on the organization, even if those comments are not made on company time.
• The company itself is represented online, either through official social media pages or through the actions of anyone who is (or claims to be) affiliated with the organization—even if not acting in any official capacity. The company’s reputation is on the line.

All of these components need to be addressed by a social media policy, but the organization must also consider employee rights in the process. The company needs to look at this from multiple angles:

• Employers should consider who represents the company online.
• The company should consider whether employees can use social media accounts at work and how a potential hit to employee morale when banning it compares to any risk to productivity that may come with allowing it.
• The company also needs to keep in mind the related legal ramifications of any policy they create. (One specific legal issue, concerted activity, is described below.)
• Ideally, any social media policy will have a clear connection to the company’s vision and mission, and will incorporate company culture as well—all of which is no easy task.

Respecting Concerted Activity

Let’s take a look at one particular legal consideration to keep in mind when drafting a social media policy: concerted activity, which is a protected right of employees.

One of the primary reasons employers create a social media policy is to limit risks—including the risk to the reputation of the organization that comes from the online activities of employees. It can be tempting to simply have your social media policy say that employees cannot talk negatively about the organization in any way online. However, it’s not nearly that simple from a legal standpoint. This is because employers cannot infringe upon an employee’s right to talk about an employer—this right is protected by the National Labor Relations Act (NLRA).

The NLRA prohibits employers from restricting concerted activity among employees. Employers need to be aware that this can extend to social media in many instances. Since employees have the right to discuss working conditions, they can do so online—and restricting such discussions could be deemed a denial of an employee’s rights to concerted activity. What this means in practice is that employers should be careful to not restrict employees from discussing the organization, even if that means they do so in a public forum, such as social media.

Employers should also be wary of being too restrictive in other ways, such as restricting employees from “friending” other employees or being too strict on what data can be publicly shared.

Keeping all of this straight can seem daunting. What can an employer do? The key here is to be specific in what action is restricted. It’s often vague or overly-broad restrictions that get employers into trouble. For example, it’s fine to prohibit employees from harassing one another on social media, making blatantly false statements, or disclosing trade secrets that would irreparably harm the company (giving specific examples will further strengthen the policy). On the other hand, it’s not okay to make a blanket statement prohibiting any discussion of the work environment or prohibiting any discussion of any other person in the organization. Many employers have even opted to include a clause that alerts employees to their NLRA rights, just to be clear that these rights are not being infringed upon.

**This article does not constitute legal advice. Always consult legal counsel with specific questions.**
 

About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.