Just take a stroll around the workplace, and you will almost certainly see it happening; one employee makes a quick Facebook post using the company computer.
Down the hall, another coworker uses her personal smartphone to tweet about what is going on at work. Do a simple Google search with your company's name, and you may find blogs or posts of all kinds that have been placed on the internet by employees. Social media is a part of everyday life, including life at work.
Employers have legitimate interests that can be addressed through implementing and enforcing a social media policy. Employees' use of work time and company-owned equipment to post, blog, and tweet is, of course, a concern for employers. But even when employees are on their own time and using their own computers (or smartphones or tablets), it is understandable that employers want some reasonable level of control over what employees are "telling the world" about the organization and its employees in social media.
While employers can certainly establish effective social media policies, careful drafting is required in light of the aggressive steps taken by the National Labor Relations Board (NLRB). The NLRB is going to great lengths to challenge the validity of commonly used social media policy provisions.
By filing complaints and issuing reports from its Office of General Counsel, the NLRB is taking the position that many social media policy provisions violate the National Labor Relations Act (NLRA). The NLRB asserts that many provisions unlawfully restrict employees from engaging in protected concerted activity, including communicating about terms and conditions of employment through the use of social media.
Even with the NLRB's aggressive stance, employers can still achieve their objectives through careful drafting (or revision) of social media policies. A social media policy can both protect the company's interests and withstand a challenge of illegality. Let's take a look at some "dos and don'ts" that will help accomplish those objectives when writing (or revising) a social media policy:
Craig Cowart is a partner in the Memphis office. For nearly two decades, Craig has represented the interests of employers in Title VII, ADA, ADEA, FMLA, FLSA and other labor and employment related litigation, arbitrations, and administrative proceedings. He also devotes a substantial portion of his practice to helping employers formulate solutions to issues that arise every day in the workplace, including decisions related to counseling, disciplining, and terminating employees. Prior to joining the firm he spent a portion of his career as in-house counsel for an international specialty chemicals company where he was responsible for management of all employment related litigation and legal matters related to human resources. Craig is "AV" peer review rated by Martindale-Hubbell. www.laborlawyers.com
- Do: Define terms, provide examples, and use approved language.
- Do: Protect confidential information and trade secrets.
- Don't: Use language restricting employees' rights to discuss wages and other working conditions.
- Don't: Require employees to resolve workplace concerns internally instead of using social media.
- Do: Encourage internal communications.
- Don't: Rely on a boilerplate disclaimer.
- Do: Consult with counsel to develop appropriate language.