Social media has become a double-edged sword for employers.  It represents great marketing potential and threats to confidential business matters at the same time.  The evolving nature of social media complicates an employer’s ability to draft adequate policies to address both sides.  And employees often fail to realize that posting negative remarks about an employer to thousands of “friends” can have a material effect on a company.

As a result, employer social media employment policies on the topic vary widely.  Some restrict communications; others encourage employees to promote the company or its products; while some attempt to do both.  Whatever the company’s position, employers must consider several important factors when drafting social media policies.

Prohibiting Communications:
Restricting employee communications through social media outlets (e.g., social networking sites) has been a target for the National Labor Relations Board (NLRB).  The NLRB has responded to employer social media policies and actions pursuant to those employment policies with a critical eye in press releases and decisions. Generally, the fact pattern that concerns the NLRB is as follows.  An employee uses social media to post negative remarks about the employer.  Other employees and individuals comment on the post.  The employer discovers the post and disciplines the employee(s).

The NLRB’s responses usually include two main points.  First, the NLRB believes that an employee’s complaints and comments about work (what an employer would likely consider disparaging comments with no constructive purpose) are protected under the National Labor Relation Act (NLRA).  Second, social media employment policies broadly prohibiting employees from posting disparaging remarks about the employer are invalid under the NLRA.  The NLRB considers these employment policies and corresponding disciplinary actions to be a violation of the NLRA.

Encouraging Use of Social Media:
Employers who encourage the use of social media to promote the company and its products should ensure that their policy complies with Federal Trade Commission (FTC) regulations.  These regulations specifically address the use of social media in advertising and and require certain disclosures.  Employers who violate these regulations may be required to take certain remedial action.

Additional Considerations:
While social media has been fertile ground for government agency to find violations, employers should not shy away from implementing social media employment policies to protect their interests.  Employers have the right to prohibit certain communications (e.g., disclosure of intellectual property; harassment of employees and customers), and in some instances they are obligated to do so (e.g., under the Health Insurance Portability and Accountability Act (HIPAA)).

Action Items:
Moving forward, employers should:

  1. Establish a clear vision of the use of social media in all aspects of the business (e.g., hiring, marketing, disclosures, etc.);
  2. Identify any policies currently in place that relate to or address social media;
  3. Carefully review the legal requirements associated with the company’s position and policies;
  4. Identify any deficiencies in the current policies; and
  5. Draft a comprehensive social media policy that protects the employer’s interests.

Please feel free to contact us if you have any questions or concerns regarding these issues.

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