Social media has played an increasingly prominent role in our daily lives, especially during the COVID-19 pandemic as we’ve been largely quarantined for months. This is no less true for your employees than for the larger public. Therefore, it’s important to develop a solid social media policy so they know your expectations and you can protect your business interests. Read on for more information about recent trends and recommendations.
Fired For Calling Out Customer Behavior on Social Media
In April 2020, when the U.S. economy was still largely shut down because of COVID-19, a Trader Joe’s employee used social media to criticize customer behavior. Among other things, the statements posted on his personal Facebook and Instagram pages complained about customers spending too much time “browsing around” and implored them to “come in with a sense of purpose, get what you need, and get yourselves home.”
The employee was terminated for violating the employer’s social media guidelines by not making clear he was speaking on his own behalf, not the employer’s. Also, he allegedly failed to comply with the company’s employee handbook expectation to “treat all customers with integrity.”
In a recent advice memo, the National Labor Relations Board (NLRB) addressed whether the termination violated federal labor law. Under the “Jefferson Standard” (derived from a 1953 U.S. Supreme Court case), communications aren’t protected if they are so “disloyal, reckless, or maliciously untrue” that their intent was to disparage the employer’s product or service rather than appeal for support in a labor dispute.
Applying the standard, the NLRB reasoned that although the social media posts didn’t directly disparage the employer or its products or services, the “insults toward the employer’s customers—the life blood of a retailer’s business—were likewise disloyal.” In addition, the Board concluded the postings had no nexus to a labor dispute, even though they were related to health and safety at work. They therefore weren’t protected by federal labor law.
Lengthy Social Media Policy Is Lawful
In another recent case, the NLRB held lawful many provisions of an employer’s lengthy social media policy banning “inappropriate communications, even if made on your own time using your own resources.” The policy’s following prohibitions were found to be lawful:
- Disclosing “confidential or proprietary information regarding the company or your coworkers”;
- Using “company logos, trademarks, or other symbols in social media” or “the company name to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person”;
- Posting “photos of coworkers without their express consent”;
- Sharing employee compensation information; and
- Using blogs, social networking sites, or personal websites “to disparage the company, its associates, customers, vendors, business practices, patients, or other employees.”
In essence, the NLRB recognized the employer’s “legitimate justification, outweighing the rule’s potential to interfere with the exercise of [the employee’s rights], in prohibiting its employees from disparaging it or its products to its customers and the public” and “being able to depend on the loyalty of [its] employees.”
Most important, the provisions listed above were found to be lawful in part because the NLRB interpreted the various rules “in context” rather than “in isolation.” The employer’s social media policy was detailed, and each rule included explanations and examples. The Board reasoned an “objectively reasonable employee” wouldn’t read the rules as prohibiting activity protected by federal labor law.
Policy Considerations
The National Labor Relations Act (NLRA) is a federal law that protects, among other things, employees’ rights to address conditions at work. The law has been extended to certain work-related conversations conducted on social media. Though recent NLRB decisions signal a trend toward greater protection for employers’ business interests (see the above examples), you should still exercise caution when crafting and implementing social media policies.
Five things your policy shouldn’t prohibit. Here is a list of things you should not include when adopting and implementing a social media policy:
- Blanket prohibition against any discussions about work on social media;
- Ban on postings or discussions by employees about their pay, benefits, or working conditions;
- Rule against employees connecting with (or “friending”) one another on social media platforms;
- Requirement for employees to identify themselves by name if they mention the employer or discuss their work on social media; or
- Prohibition against employees using social media to contact traditional media (e.g., news reporters or newspapers) about work conditions.
Your policy shouldn’t be so broad that it prohibits the disclosure of any “employee information” on social media. Banning the disclosure of certain information, such as personal medical information or proprietary information and trade secrets, is appropriate. Include examples of what constitutes proprietary information or a trade secret.
Three things it should include. Your social media policy should include:
- Definitions and specific examples about what constitutes “inappropriate conduct” on social media (i.e., don’t vaguely describe it without further explanation and guidelines);
- Language simple enough for a reasonable employee to understand, yet detailed enough to withstand legal scrutiny; and
- Periodic reviews and updates because social media and its cultural norms are constantly changing and evolving.
Bottom Line
Reviewing your employee handbook and talking to an employment lawyer to ensure your social media policy adequately protects your business interests and can withstand legal challenges is a worthwhile investment.
Andrew Alder is an attorney in the Boise office of Parsons Behle & Latimer. You can reach him at aalder@parsonsbehle.com.