The use of social media has created unique issues for employers and employees. Individuals often choose to use social media as a platform for voicing opinions and concerns, including complaints about issues in the workplace. While many employers would likely choose to just prohibit any negative comments on social media by employees, these types of restrictions are not allowed under the National Labor and Relations Act. Section 7 of the Act gives employees rights to engage in protected concerted activity and restrictions on social media use can be seen as unlawful restraints on these rights. The National Labor Relations Board (“NLRB”) offers guidance about the types of restrictions on social media use that are acceptable under the Act.
According to the NLRB, employees “have the right to address work-related issues and share information about pay, benefits, and working conditions” on social media sites. However, not all speech is protected under the Act. For employee speech to be protected under the Act, the communication “must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.” An employee’s social media post simply complaining about some aspect of work is not considered “concerted activity” protected under the Act. Similarly, posts about an employer “that are egregiously offensive or knowingly and deliberately false” or posts publicly disparaging an employer’s products or services unrelated to a labor controversy, are not protected. Based on recent opinions by the NLRB, below are specific employer social media rules both permitted and prohibited under the Act.
What Can Employers Require Regarding Employees’ Use of Social Media?
The following types of social media restrictions made in employment documents, such as an employee handbook, are permitted:
- Requiring employees who post about their employer on social media to make it clear that they are an employee of the company, but not speaking on behalf of the company or as an official company representative;
- Requiring that any company-branded social media accounts (with all or part of the company name in the account name or URL or using the company logo) must be approved in advance;
- Requiring certain disclaimers to be used on personal social media accounts if employees are speaking about their employer in any way, including re-sharing information from their employer’s official company social media accounts. Specifically, requiring employees’ twitter bios to include a disclaimer, such as “tweets my own” or “views my own” is permitted. Also permitted, is requiring comments made on blogs and news sites to include disclaimers stating that any opinions expressed are personal views and not the views of the employer;
- Prohibiting employees from posting anything discriminatory, harassing, bullying, threatening, defamatory, or unlawful and posting content, images or photos that the employee doesn’t have the right to use. Generally, requirements for “harmonious relationships” in the workplace and requiring employees to uphold basic standards of “civility” are permitted;
- Prohibiting employees from discussing or posting protected personal information about other colleagues, customers, clients, or partners unless employees have their written consent to do so;
- Prohibiting employees from taking or sharing photos from non-public areas or internal meetings, including photos taken in break rooms, stock rooms, conference rooms, and any other area that is not open to the public, as well as any photos of company presentations/slides, documents, notices or computer screens of any kind. Additionally, general prohibitions on photography and recording in the workplace are allowed; and
- Prohibiting employees from publicly disclosing company-provided “internal” communications and information. However, employers should be careful about how such provisions are drafted, because while prohibitions from disclosing trade or business secrets are allowed, a general prohibition on posting confidential information will be found unlawful, if employees could reasonably interpret the restriction to include information about their terms and conditions of employment (which employees are free to post about).
However, employers cannot include the following types of restrictions:
- Requiring that employees identify themselves by name if they mention their employer or discuss their work on social media;
- Prohibitions on disclosing “employee information” through social media, since “employee information” can encompass employee contact information and other non-confidential employment-related information, which employees are free to post; and
- Prohibitions on posting “inaccurate” or “false” statements (while employers may prohibit “maliciously false” statements, employees are free to post inaccurate statements, as long as those statements do not constitute malicious defamation).
Well-designed social media policies can protect employers and ensure social media is used to a company’s advantage. The NLRB’s standards for determining whether or not social media restrictions are appropriate have become more relaxed in recent years, and employers may want to review their current social media policies, or create new policies, based on the NLRB’s recent guidelines. However, since it can be easy to impose a restriction that unintentionally restricts an employee’s rights, it would be beneficial to seek guidance from experienced attorneys.
For assistance drafting the best social media policy for your business, contact General Counsel, PC today at 703-556-0411 or firstname.lastname@example.org.