Author: Jason Habinsky, Haynes & Boone
When to Use This Policy
Prospective, current and former employees, customers and vendors all use social media sites such as Facebook, Twitter, LinkedIn, Google+. By monitoring social media sites, employers can discover what is being said about the employer, the employees and workplace.
There are many reasons for employers to develop a social media policy, including, but not limited to:
- Curbing harassing, discriminatory and defamatory postings;
- Warning employees of disciplinary consequences for releasing confidential and proprietary information as well as employer trade secrets; and
- Putting the employees on notice as to what the employer expects should and should not be posted about the employer online.
The law in this field is changing rapidly, however, and employers should be careful when disciplining employees based on social media activities.
Having a social media policy in place does not always allow the employer to dictate how the employer's image is presented online. It permits the employer to have some control over the employer's image, however, and it could prevent employees from posting inappropriate messages online.
Another important decision for the employer to make is to determine who will be responsible for managing the social media policy. The individual or department chosen to oversee the policy is responsible for implementing and enforcing it and should know the employer's goals and reasons for establishing these rules.
Employers must be cautious and avoid infringing on the rights of both union and non-union employees to engage in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA) when employees seek to discuss wages, hours and working conditions with co-workers over social media sites such as Facebook.
In fact, the National Labor Relations Board (NLRB) issued guidance in August 2011, January 2012 and May 2012 specifically dealing with social media policies and disciplining employees with regard to social media use. Further, in 2012 and 2013, the NLRB released various decisions addressing social media use in the workplace and invalidated many provisions that could be reasonably interpreted to prevent employees from engaging in protected activity.
Thus, employers must be extremely careful in drafting, implementing, and administering any social media policy and make sure that it does not run afoul of the NLRA.
Below is a model policy that should be further tailored to fit the employer's specific needs