Generally speaking, you can prohibit your employees from engaging in certain activities (including social media use) during work hours or while using your equipment and/or communication systems—and discipline them for doing so.
From a practical standpoint, the best way to manage the risks associated with employee social media use is to develop a comprehensive policy that is distributed and signed by employees when they are first hired. The following guidelines can help you draft your social media policies, which should be applied and enforced in a fair and uniform way.
Conform Policies to Comply with Law
In addition to prohibiting employees from using social media while at work, you may also control what they say on social media about your business while they aren’t at work. Be careful, however, not to infringe on their rights under the National Labor Relations Act (NLRA) and the federal Stored Communications Act (SCA).
Specifically, the NLRA grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The SCA generally prohibits intentional, unauthorized access to electronic information.
A strong social media policy reduces legal and security issues, helps protect your company’s reputation, and provides employees with guidance on what may be shared about the company online. For example, effective social media policies clearly state employees may not make discriminatory, harassing, or threatening comments about other employees on social media. They can also prohibit employees from using your intellectual property, trade secrets, or confidential information without authorization.
Below are several essential do’s and don’ts when drafting your social media policies.
Social Media Do’s
Provide examples of clearly illegal or inappropriate conduct. Rules that lack examples may be viewed as unlawfully interfering with employees’ rights.
Include a rule that employees post only appropriate content. You should clarify that inappropriate postings—such as discriminatory remarks, harassment, or threats of violence—may subject them to disciplinary action.
Include a rule requiring employees to maintain the confidentiality of your trade secrets and private information. Provide examples of what content constitutes a trade secret, such as information about the development of systems, processes, products, know-how, and technology.
Include a rule that employees post only respectful content. Make sure employees avoid posting statements, photographs, videos, or audio that could be viewed as malicious, obscene, threatening, or intimidating. You also can prohibit employees from posting content that disparages customers, members, associates, or suppliers or might constitute discrimination, harassment, or bullying. Provide examples of prohibited conduct, such as offensive posts that would harm someone’s reputation or contribute to a hostile work environment.
Social Media Don’ts
It’s also a good idea to be familiar with what social media policies should not include:
- Don’t explicitly bar employees from complaining about their working conditions, wages, or hours.
- Don’t have an ambiguous policy. Be clear that you don’t restrict speech protected under the NLRA.
- Don’t prohibit employees from communicating with the media or require authorization for such communications.
- Don’t prohibit making disparaging or defamatory comments about your company, employees, affiliates, or products and services without providing examples that clarify the rule.
Emily Brodner is a second-year law student at the University of Arizona, James E. Rogers College of Law. Juliet S. Burgess is the founding partner of the Burgess Law Group, specializing in labor and employment law and commercial litigation. For more information, please visit www.theburgesslawgroup.com.