In a recent article, we discussed the fact that employers need to be careful to avoid being overly restrictive in their social media policies, since restricting what employees can say online might constitute interference with an employee’s right to concerted activity under Section 7 of the National Labor Relations Act (NLRA).
However, there are still plenty of things an employer can do to protect their productivity, reputation, and confidential information when employees use social media. Let’s take a look.
What Can a Social Media Policy Restrict?
For employers creating a social media policy, generally speaking, it’s fine to:
- Restrict the ability to talk publicly about anything confidential within the organization. A confidentiality policy also covers this, but it doesn’t hurt to reiterate it in a social media policy, especially since so many people mistakenly assume that their social media privacy settings will protect information from being seen publicly (which is not necessarily true). However, ensure that the policy is not overly broad in defining what is deemed to be confidential information. For example, it would not be wise to deem anything related to working conditions (wages, safety controls, etc.) as confidential since restricting discussion about such things would be a clear violation of the NLRA.
- Control who can act on behalf of the organization in an official, public, sanctioned capacity. Some employers opt to disallow employees from affiliating with the organization online in any way, including listing the employer on their own private pages. However, this is a controversial and potentially problematic step. Yes, it can be a way to dissociate from employees’ private lives, thus reducing the risk of having an employee’s private activities reflect poorly on the organization, but like many of the items here, employers should be careful since such a provision could also be worded in a way that is overly vague or overly restrictive—thus falling on the wrong side of National Labor Relations Board (NLRB) guidance.
- Have a policy restricting the ability to give recommendations to other employees and former employees. The reason many employers opt to do this is because such recommendations can be used as evidence of employee conduct—which might counter evidence an employer presents that upholds an employee discharge. (This relates to social media because social media pages like LinkedIn ask for peer recommendations.)
- Prohibit blatantly false claims made in bad faith. While an employer clearly cannot prohibit employees from commenting on working conditions that are actually true, it may be possible—if worded appropriately—to prohibit deliberate lying and false statements.
- Prohibit illegal activity, such as sharing copyrighted information, violating others’ privacy, or sharing illegal content.
- Ensure that customers are protected by noting what types of information employees can and can’t say about customers. Again, within limits—employers cannot simply prohibit ever mentioning any customer at all, as doing so may be construed as limiting an employee’s ability to speak about working conditions as it relates to customer products.
- Prohibit employees from giving out information that would put the company’s security at risk in any way, such as info on accessing the secure area of facilities or accessing the company’s data.
- Restrict how much personal social media can be used while on the clock or while using company-owned devices. (Bear in mind, however, that some organizations have found there are productivity and morale gains to be had by allowing some social networking at work during breaks. Trying to prohibit 100 percent of social media activity during work hours can be counterproductive in some cases.)
- Prohibit sexual harassment and discrimination against individual employees, noting that such actions will never be tolerated, even on private social media accounts. (Just don’t go overly broad with restrictions, such as disallowing any type of discussion about any other person.)
**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.