Author: Douglas S. Zucker, Bauch Zucker Hatfield LLC

Overview

Employers have many reasons to limit employee postings on social media and may impose various types of restrictions of employee use of social media.

This Supervisor Briefing examines the law and best practices regarding employee use of social media:

  1. What Is Social Media?
  2. Employer Concerns
  3. Regulating Social Media and Internet Postings
  4. Monitoring Social Media and Internet Postings
  5. Test Yourself

What Is Social Media?

The term social media refers to websites and other online means of communication and mobile technologies, often used by large groups of individuals, to share information and to develop, renew and maintain social and professional contacts and relationships.

Employer Concerns

Business and social networking sites (such as Facebook, Twitter, LinkedIn, Google+, and many smaller and more specialized sites) generally require users to create a profile in order to participate. These profiles include personal information about the individual, such as information about employment and work-related activities. In addition to these sites, other online venues offer individuals the opportunity to post personal information and descriptions of activities in blogs, wikis, podcasts, etc. Still other sites (for example, Flickr, Tumblr, YouTube) feature photos and video posted by participants.

Given the pace of technological change and the rapid growth in the use and popularity of social media, there is great potential for employees and others to disclose, inadvertently or intentionally, private and confidential information about an employer and its business operations. Therefore, in an effort to control the outflow of information through these communication outlets, many employers issue policies and guidelines regarding employee use of social media.

Monitoring and enforcement of these policies and guidelines can create a separate set of issues when communications involve co-workers discussing or complaining about workplace-related issues within their organizations, because these communications may be deemed protected conduct under the National Labor Relations Act (NLRA).

A supervisor should be aware that it is a violation of the NLRA to discipline employees who have engaged in protected concerted activity under Section 7 of the NLRA and have criticized the employer or other employees on a social media website. Furthermore, it is unlawful for the employer to try to interfere with the right of employees to engage in protected activity when implementing any social media policy. The right of employees to engage in protected, concerted activity to improve working conditions pertains to both union and non-union employees.

Therefore, the supervisor should always consider the latest NLRB guidance when setting parameters for appropriate and acceptable social media use, enforcing social media policies, or monitoring employee social media use.

Regulating Social Media and Internet Postings

The employer and its supervisors should follow several guidelines to regulate social media and internet postings.

  • Do implement and enforce a comprehensive social media policy pertaining to social media participation and internet postings. The supervisor should aim to strike a balance between protecting against the intentional or inadvertent disclosure of information relating to the organization and its business operations and not unduly restricting employees' personal free speech rights.

    Social media policies can complement employer policies on the use of computers and electronic communications, such as email, voicemail, messaging, etc., that relate primarily to internal and external work-related internet access and messaging. Social media policies may address internet activities that do not necessarily involve the use of the employer's computers, electronic equipment, or internet access, or that do not occur during working hours or on the employer's premises.

  • Do consider implementing a policy that limits employee access and posting to any social media websites for personal reasons during working hours, on the employer's premises, or while using employer computers, electronic equipment, or internet access for safety and productivity reasons.
  • Do implement a policy that prohibits employees from posting confidential or proprietary business information of the employer or any customer, client, or business partner to any social media websites at all times, both during working and non-working hours and on personal time using personal equipment.
  • Do enforce a social media policy consistently and uniformly to ensure that if certain online activities are prohibited, based on type or content or posting, this type of prohibition is applied to all employees.
  • Do hold employees accountable for all content they place on or send over the internet and post to social media networks.
  • Do remind employees that nothing posted on the internet is private. The supervisor should caution employees that even when a social media network promises privacy or confidentiality, administrators of the sites may have access to the information. Posting information intended only for a select group of people still carries a high risk of disclosure by a member of the individual's own select group to individuals in the second individual's own select group, and on and on it goes.
  • Do warn employees making online comments about competitors, customers, and the employer that their comments could be misunderstood as originating from the employer.
  • Do caution employees regarding the content of online postings and warn employees not to post anything that is false, misleading, obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful, or invasive of the privacy of another individual. False or defamatory statements or the publication of an individual's private details could result in legal liability for both the employee and, potentially, the employer.
  • Do caution employees to refrain from unlawful conduct. The supervisor should instruct employees not to post any content that promotes illegal conduct or contains any viruses or other harmful computer code.
  • Do caution employees to respect the rights of all individuals. The supervisor should instruct employees to respect intellectual property rights, such as copyrights and registered trademarks belonging to another party.
  • Do consult with HR professionals or counsel before disciplining any employee for postings made through online social media.
  • Do caution employees about being viewed as employer representatives. The supervisor should advise employees that any time they identify the employer in a social media forum, their comments and other postings have the potential to reflect on or be attributed to the employer, even if these comments are not authorized and/or if the employee intended only to express a personal opinion.
  • Do remind employees that the employer reserves the right to monitor employee-use of any social media, and to take appropriate action with respect to inappropriate or unlawful postings. The supervisor should remind employees that in monitoring social media, the employer will not in any way interfere with any employee rights under Section 7 of the National Labor Relations Act.
  • Don't prohibit all social media postings during working hours or using the employer's equipment to post. Social media activity may be protected under the NLRA.
  • Don't rely on a boilerplate savings clause stating that the social media policy will be administered in compliance with applicable laws and regulations, including Section 7 of the NLRA. This will not cure ambiguities if policy provisions are overbroad or ambiguous.
  • Don't advise employees to report any unusual, unsolicited or inappropriate internal social media activity, since this may be interpreted as encouraging employees to report the union activities of other employees to the employer.
  • Don't advise employees to check with the employer or the supervisor before posting if in doubt about posting content, since this may restrict Section 7 rights.
  • Don't require authorization before reaching out to third parties, including the internet and the media, because this may chill the right to communicate information about labor disputes and an employer's wages, hours, and working conditions.
  • Don't prohibit employees from posting photos or content belonging to others without first obtaining the owner's permission, since this may interfere with the right to take and post photos of employees engaged in protected concerted activities (such as on a picket line) or working in unsafe conditions.
  • Don't prevent employees from using employer trademarks and logos, because non-commercial use of such marks while engaged in protected activity would not infringe upon the employer's proprietary interests.
  • Don't prohibit employees from expressing personal opinions to the public or to the media regarding the workplace or dissatisfaction with wages, hours and working conditions.
  • Don't prohibit employees from making offensive, demeaning, disparaging or defamatory remarks without clarifying those terms, because such a prohibition would chill protected criticisms of the employer's wages, hours, working conditions and policies.
  • Don't restrict disclosure of personal information about employees without clarification, because this may inhibit discussion about employee wages and working conditions.

Tip

To avoid having employees misrepresent themselves as employer representatives, the supervisor should provide employees with the following guidelines:

  • Employees may not speak on behalf of the employer except when appropriate and authorized in the ordinary course of performing their job duties, such as a public relations employee or employer spokesperson;
  • Employees must indicate clearly that the views expressed in social media are their views alone and do not represent the views of the employer. Whenever an employee is posting about any subject that could be viewed as the employer's opinion, the employee should include a prominently placed disclaimer stating: "The views expressed on this [blog/website] are my own and do not necessarily reflect the views of my employer or any other party";
  • Employees must obtain authorization from a designated employer representative before responding to any online comments or complaints from individuals outside the organization regarding the employer or its clients or business partners, particularly when others could attribute such response to the employer;
  • Employees may not publish proprietary or confidential information belonging to a competitor.

Monitoring Social Media and Internet Postings

The following guidelines address monitoring social media and internet postings:

  • Do monitor employee social media participation and internet posting activities related to employment. A key aspect to enforcing social media policies is monitoring employee social media internet postings to determine compliance with and/or violations of policies. Designated personnel should actively monitor employee use of social media to ensure that social media use by employees complies with the employer's established policies and guidelines.
  • Do remain cautious in monitoring social media and internet postings because some employee postings are protected under the NLRA.
  • Do Examine the content of employee internet postings to determine if the postings constitute protected concerted activity under the NLRA before taking any action.
  • Do advise employees to use their best judgment and exercise personal responsibility when participating in social media or posting online.
  • Don't monitor employee personal social media participation and internet posting activities that are not related to employment, unless the activities are unlawful or contain impermissible content.
  • Don't implement a social media policy that impairs employee First Amendment rights to free speech. Monitoring access and postings that occur during working hours or using employer equipment or resources is important to ensure compliance with social media policies and guidelines, but the supervisor must respect employee privacy and free speech rights with regard to all social media participation that does not relate in any way to employment.
  • Don't attempt to gain access to employee social media networks or accounts because the federal Stored Communications Act (SCA) prohibits employers from accessing employees' private email and social media accounts and gives employees the right to sue the employer and the supervisor for privacy violations under the SCA.
  • Don't ask employees or applicants for their passwords or access to social media accounts. There is a growing movement on the federal and state level to pass laws prohibiting this and it is best practice for employers to avoid doing it in the first place.
  • Don't prohibit employees from expressing complaints or opinions about employment-related issues with other employees, including in social media.
  • Don't discipline or take action against any employee whose internet postings may constitute protected concerted activity under the NLRA. The NLRA protects employees who are engaged in concerted activities for their mutual aid and protection, and prohibits employers from taking any adverse action against employees for engaging in concerted activities or otherwise exercising their rights under the NLRA.
  • Don't apply blanket rules when reviewing employee internet postings. Evaluate each based on its specific content and context.
  • Don't advise employees not to pick fights or avoid controversial, objectionable or inflammatory topics when posting online, since this may be viewed as interfering with the right of employees to engage in protected concerted activity.
  • Don't engage in active surveillance of employee online activities when the postings suggest protected concerted activities. Because the National Labor Relations Board (NLRB) may be willing to extend NLRA protections to employee social media postings, the employer and its supervisors should not engage in surveillance of employees engaged in concerted activities. The supervisor should not take action against employees who engage in protected concerted activities on social media, particularly if the supervisor obtained the information by monitoring employee comments and activities on social media.
  • Don't respond to employee online postings that discuss wages, hours or terms and conditions of employment. Such postings which likely call for collective action will be protected under the NLRA.

Did You Know?

The following may constitute protected concerted activity:

  • Discussions by a group of employees regarding complaints about wages, hours or terms or conditions of employment;
  • Employee criticisms of supervisors or the employer, shared with other employees;
  • Employee comments about mutual dissatisfaction or concern complaints with the employer's payroll practices.

The following are likely not to constitute protected conduct:

  • Discriminatory or harassing comments or those that threaten violence;
  • Employee comments or griping on his or her own behalf with no suggestion of any intent to lead to group action with other employees;
  • Employee comments that are not related to employment issues;
  • Employee criticisms about the employer's product(s) or service(s); and
  • Individual employee complaints regarding wages, hours or terms or conditions of employment, not discussed with other employees.

Test Yourself

  1. Which of the following is not appropriate to include in an employer social media policy?
    1. A statement that employees should not engage in any conduct over social media that is harassing, discriminatory, libelous, obscene and/or abusive.
    2. A statement that employees may not connect on social media with any individual they met through their employment.
    3. A statement that employees should be careful about divulging and disclosing the confidential information and trade secrets of the employer and complying with non-disclosure and confidentiality obligations
    4. A statement that employees obtain prior authorization or permission before posting a message that is either in the employer's name or may be attributed to the employer or speaking to the media on the employer's behalf.
  2. Which of the following social media postings does not constitute a protected concerted activity?
    1. An employee's criticism about a supervisor or the employer, which the employee previously discussed with co-workers.
    2. An employee's posted response to an employer's decision to eliminate afternoon breaks for all employees.
    3. An employee's complaint that his or her supervisor is disrespectful and rude to the employee.
    4. Three employees discussing concerns about a possible mold problem in their workplace.
  3. Which of the following is not an appropriate step that a supervisor should take prior to imposing disciplinary action against an employee for an online posting on the employee's Facebook page?
    1. Question other employees connected to the employee who posted, about what the meaning and purpose behind the posting or about their understanding of the posting.
    2. Review the social media policy to determine whether the posting violates a specific provision of the policy.
    3. Carefully review the content of the posting and any events that occurred at work during the days before and after the posting appeared.
    4. Contact HR or counsel to discuss the posting and the intended discipline.

Answers

  1. b. The statement is overly broad and infringes on the employee right to free speech and free association. Although an employer can caution employees about what they include in their profile and postings, and to whom they provide access, an employer cannot prohibit an employee from connecting with any other individual solely on the basis that the employee met the other individual through working for the employer. Choice a is incorrect because the employer has a right to prohibit employees from engaging in conduct that is harassing, discriminatory, libelous, obscene and/or abusive. Choice c is incorrect because the employer can caution employees about disclosing confidential information and trade secrets. The employer should specifically define what is meant by confidential information. Choice d is incorrect because it is permissible for the employer to require that employees obtain prior authorization or permission before posting a message that is either in the employer's name or may be attributed to the employer or speaking to the media on the employer's behalf. However, the employer may not prohibit employees from expressing personal opinions to the public or to the media regarding the workplace or dissatisfaction with wages, hours and working conditions as this violates employee rights under Section 7 of the NLRA.
  2. c. Mere griping about an individual problem that does not concern other employees or suggest any concerted action is not protected conduct. Choice a is incorrect because by discussing the issue with other employees before posting, the employee's posting on the same topic became a protected discussion about a term or condition of employment. Choice b is incorrect because the subject clearly involves terms and conditions of employment and affects all employees, not just the posting employee. Choice d is incorrect because terms or conditions of employment may include environmental issues and multiple employees are discussing the issue.
  3. a. The supervisor should not question other employees because, depending on the content of the posting, it may constitute protected activities in which those employees also may be involved and because it suggests an invasion of employees' privacy rights. Answers b, c and d are incorrect because the supervisor should follow a process that includes review of the content and context of the posting to ensure it does not constitute protected, concerted activity, comparing that content against the policy to ensure the posting constitutes a violation, and discussing the circumstances with HR or employment counsel to confirm the supervisor's initial assessment and help insulate the employer from liability for a violation of free speech or privacy rights, or rights protected under the NLRA.