Labor & Employment Developments Blog

Social media has become an unavoidable part of society and an unavoidable issue in the workplace. While online posts may seem personal, a single tweet, post, or comment can quickly escalate into a workplace issue. With more than 70% of Americans active on at least one social media platform, employers should ensure their social media policies are carefully drafted to protect business interests while preserving employee rights.

Well-drafted policies can provide both protection for the business and clarity for employees. This safeguards the company’s brand and legal interests while setting clear expectations for online conduct. However, these policies must be created carefully. Overly broad restrictions invite scrutiny from regulators and risk being struck down, while insufficient guardrails may leave employers without recourse when employee conduct crosses the line.

Legal Boundaries: What Employers Cannot Do

In crafting social media policies, employers must remain mindful of legal limits. For instance, the National Labor Relations Act (NLRA), protects employees’ rights to engage in “concerted activity,” which includes discussing wages, schedules, or other terms and conditions of employment, even on social media. Policies that categorically prohibit employees from mentioning workplace matters risk violating federal law. Indeed, federal agencies have consistently determined that overbroad policies can unlawfully restrict protected employee activity.

Moreover, numerous states have enacted social media privacy laws.  In many instances, these laws prohibit employers from accessing an employee’s private social media posts, and thus, effectively preclude employers from disciplining employees for non-public posts. Employers should be mindful that state and local laws may impact their ability to access and discipline employees based on private posts.

Practical Considerations: What Employers Should Do

Social media policies should be designed to withstand legal scrutiny and provide employers with practical tools to address conduct that threatens workplace harmony or the company’s reputation. A well-drafted policy can give employers discretion to discipline employees when online activity crosses the line, while still respecting federally protected rights.

When establishing or reviewing a social media policy, employers should focus on five key points:

1. Avoid Overbreadth: Policies that categorically prohibit employees from posting about their workplace are often found unlawful. Instead, restrictions should be limited to prohibit conduct such as threats, harassment, or the disclosure of confidential business information.
2. Clarify Use During Work Hours: Employers may reasonably restrict personal social media use during work hours, especially on company devices or networks. Employers should also caution employees against using company email addresses for personal accounts.
3. Encourage Professionalism and Decorum: Employers should remind employees that discriminatory, harassing, or offensive posts, even those made outside of work hours, can create legal and reputational risks. Posts targeting protected characteristics such as race, religion, gender (including gender identity), and sexual orientation can expose both the employee and employer to liability.
4. Tie to Existing Conduct Policies: Social media activity policies should be closely tied to the company’s existing code of conduct and anti-discrimination/harassment policies. Making this connection explicit reinforces that employees are held to the same standards online as in the workplace.
5. Prohibit Misrepresentation: Employees should be instructed not to speak on behalf of the company unless authorized to do so. Requiring disclaimers such as “opinions are my own” can help minimize confusion.

Ultimately, employers face a delicate balance in shaping social media policies. When carefully drafted, a social media policy can minimize risk, preserve workplace culture, and provide clarity for employees navigating an increasingly digital environment. The KMK Labor & Employment team is available to assist with drafting, reviewing, and updating social media policies, as well as providing training and guidance to ensure compliance with legal standards.