The use of social media is ubiquitous in the world today. The stark truth is: social media has revolutionized the way people communicate, and legal regimes and workplace customs must adapt. We have recently reviewed numerous handbooks for employers that include social media policies. Including these policies in employee handbooks is essential, as courts and the National Labor Relations Board (the “NLRB”) have rolled out new decisions that provide critical guidance for employers on what is allowed.
These new decisions may mean that your existing policy is out of date, thereby exposing you to potential liability.
For example, most employers know that their workers are entitled to certain rights of free speech. Faded photographs of labor leaders holding posters aloft in front a factory are images burned into popular memory. Yet few employers realize that social media platforms are the modern-day equivalent of town squares or public streets.
Employers must be wary of social media policies that infringe on employees’ rights to discuss the terms of their employment and organize. The NLRB has ruled that a catch-all provision at the end (“this policy is not intended to chill employee speech…”) may not be enough to rescue an employer from liability. This is why it is critical that employers have an attorney review the language of their policies.
To avoid this potential pitfall, we recommend dividing policies into two sections: mandatory rules and suggested guidelines. This division ensures that while employers would prefer that employees maintain a certain level of professionalism online, it is not a mandate. It also helps that employers are able to prohibit conduct that is disallowed and unprotected, such as divulging an employer’s trade secrets online or using the internet to discriminate and harass colleagues.
A good social media policy also distinguishes between employees who are using social media exclusively for personal uses and those whose job function includes using and publishing material on social media platforms. These employees should, among other things, be reminded that these social media accounts are property of the employer and the employer reserves the right to protect the accounts as they would any other asset. Additionally, Employers want to avoid liability for any misdeeds of their employees that could be attributed to them, such as infringing a third party’s copyright or violating the terms and conditions of a third-party website.
The internet has and will continue to change the workplace. Employers with questions about how to keep up should contact me at McMillan Metro 301-2251-1180 x 315 or firstname.lastname@example.org.