Excerpted from a Peckar & Abramson PC Blog by Aaron C. Schlesinger, Lauren Rayner Davis and Jennifer Harris
Social media has significantly impacted all facets of society, especially the way people communicate. TikTok is one of the world’s most popular platforms today, with over one billion active users monthly. Social media can be used to present a narrative that the workplace is fun, or that employees are enjoying working together. Social media can also document a perfect storm of events misconstrued and smeared throughout the internet, all with your company’s logo in the background.
Employers’ Rights to Regulate Employees’ Social Media Use
In the private sector, First Amendment protection does not apply to employees—there are limits to an employee’s freedom of speech when it comes to speaking about employer-related issues. Such protection is better provided by the National Labor Relations Act (NLRA) which protects an employee’s choice to engage in concerted actions for the purpose of collective bargaining or mutual aid. Importantly, employee grievances brought on their own behalf are not considered protected concerted activity. Moreover, flagrant conduct of an employee, even though occurring in the course of activity protected by the NLRA, will justify disciplinary action.
The NLRA also prohibits an employer from interfering, restraining or coercing employees from exercising their rights. This protection extends to certain work-related conversations conducted on social media such as Facebook and Twitter. Specifically, employer social media policies cannot be so broad they prohibit activities protected by federal labor laws, such as the discussion of wages or working conditions among employees. Thus, employers should be cautious before disciplining or discharging employees for social media activity.
To walk the fine line between an employee’s rights and an employer’s legitimate business interests, every employer should have a clear and consistently applied written social media policy. Social media policies should have guidelines on:
- • employee’s social media use during work hours;
• employee’s ability to register their work e-mail address on social media;
• employee’s off-duty social media conduct;
• the prohibition against revealing confidential employer information.
Employees should further be advised not to post information that is known to be false or rumors about the company, employees working for the company or its clients or competitors. The policy should also remind employees that whatever they post on social media can likely be disseminated to the greater online community and read by anyone: friends, family, company management, clients and journalists.
All policies should include language encouraging employees to discuss any questions regarding social media with supervisors or a designated individual and advising employees of the consequences for violating the policy. It is critical that employers ensure that every employee receives a copy of the social media policy, acknowledges the policy in writing and agrees to abide by it.
Having a comprehensive social media policy in place before the company issues arise will mitigate false or otherwise inaccurate information and will allow the company to determine the next steps in public messaging.
Ultimately, there is no “one-size-fits-all” approach to a social media policy. Policies should be drafted to address the needs of each company. All it takes is one video, tweet or picture to damage a company’s reputation, or to tank what was an otherwise legitimate claim. Therefore, strongly consider whether it is time to “reconstruct” your social media policy to head off the public viewing of a perfect storm or the destruction of your next claim.
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