Amir Kaltgrad, Associate, Liner LLP
Scott Liner, Partner, Liner LLP

In a brave new world of social media where the president of the United States uses social media to communicate his thoughts and opinions on a litany of subjects with the world, many working Americans likely feel justified engaging in the same type of online activities.

However, an employee’s online conduct can have real world consequences for their employer, and employers have a legitimate business interest in protecting their brand. Many companies take a proactive effort by including a social media policy in their employee handbook to avoid future problems. However, lawful construction of a workplace social media policy is not always as simple as it seems.

In recent years, the National Labor Relations Board (“NLRB”) issued guidance on best practices for creating a social media policy at work. The NLRB described examples of social media policy language that would likely be held lawful such as:

• Prohibiting discussions related to an auto manufacturer employer’s safety performance and “secret, confidential, or attorney-client privileged information”;
• Requiring employees to make clear that the views expressed by a social media post are the employee's alone and do not reflect the views of the company;
• Emphasizing a no retaliation policy for employees who report inappropriate posts;
• Prohibiting bullying, discriminatory remarks, threats, and harassment with examples of such activity; and
• Prohibiting employees from disclosing proprietary trade secrets.

However, other seemingly common sense restrictions in social media policies were found to be unlawful because they potentially violated an employee’s federally guaranteed right to discuss his or her working conditions or terms of employment. The following examples of language in employer’s social media policies to be unlawful under the NLRB:

• Instructing employees to check with their employer if they are unsure whether posting certain information is a good idea;
• Prohibiting posts that constitutes embarrassment, harassment, or defamation of the employer or co-workers;
• Requiring social media posts to be “completely accurate and not misleading and that do not reveal non-public information on any public site”;
• Imposing disciplinary action for engaging in “inappropriate discussions” about the company, management, and coworkers;
• Prohibiting an employee from posting photos or videos of the employer’s logo and trademarks;
• Prohibiting disparaging posts of the company or supervisors;
• Prohibiting employees from referring to their employer on social media without obtaining permission from the company;
• Prohibiting generally offensive or inappropriate language made to a client or coworker.

So how does an employer ensure that its social media policy is lawful?

Employers should make sure their social media policy does not prohibit or discourage employees from discussing wages, working conditions, or terms of employment on their social media pages. Providing examples of prohibited activities are a good way to inform employees that some conduct is prohibited by company policy without affecting an employee’s right to discuss wages, working conditions, or terms of employment. Employers should carefully consider the consequences of any disciplinary action against an employee for his or her online activities because taking action against an employee for posts made on a social networking site could lead to wrongful discharge claims.

The law in the social media space is still developing but employers can take the steps mentioned above to keep up with the changing landscape.

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