Is Your Social Media Policy Compliant with Federal Law?

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Broad Social Media Policy Statements Create Risk

A recent news article “Even if It Enrages Your Boss, Social Net Speech Is Protected” by Steven Greenhouse caught our attention, and highlights issues that every employer, regardless of size, must consider when crafting and updating company Social Media Policy Documents.

NLRB Quote on Social Media PolicyWe have moved past the issue of whether workers who commiserate about ‘work’ on social media sites are entitled to the same protections as those who gather around the proverbial water cooler; that answer is ‘yes’.

Employers continue to struggle with how to discourage social media postings that portray the employer in a negative light in a manner that is compliant with recent rulings. 

These recent labor board and court rulings provide more guidance to employers on how to word their social media policies in order to be compliant with federal law.

So, what type of employee behavior can your social media policy legally address?

  • Behavior that is offensive, that is not about working conditions or concerted activity;
  • Personal venting that is not aimed at improving working conditions or wages;
  • Inappropriate postings that include discriminatory remarks, harassment, and threats of violence or unlawful conduct.

Your social media policy cannot:

  • Prohibit anything posted that is legal, while off-duty and not job related;
  • Contain a blanket prohibition against employees posting things that ‘damage the company’ or ‘any person’s reputation’;
  • Contain a prohibition against offensive, abusive, disrespectful or inappropriate remarks (as this would include protected criticisms of the employer’s labor policies or treatment of employees)
  • Require employees or job applicants to provide their personal social network passwords.

Bottom line: Social Media policies must be thoughtfully worded using very specific language that puts the employee on notice of the detailed actions that are prohibited and serve as grounds for termination.

Any language that impacts an employee’s right to engage in concerted activity, to improve working conditions, or seek mutual aid is prohibited and will violate federal law.
Suzy LoughlinSuzy Loughlin, CAO – Suzanne “Suzy” Loughlin is the Chief Administrative Officer (CAO) of Firestorm. Mrs. Loughlin, an attorney, has extensive consultative experience, and has served several Fortune 500 clients, in the development of pandemic and communicable illness plans, providing a focus on the legal and human resource exposures integral to the planning process.

If you would like to discuss your current Social Media policy with us, there is no fee for an initial, one-hour call.  Let us help – (800) 321-2219

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