Your employee tweeted what?!
In the past 10 to 15 years, social media use among employees, and people in general, has exploded exponentially. According to the Pew Research Center, the percentage of American adults participating in at least one form of social media rose from 7% in 2005 to 65% in 2015 and, presumably, has continued to rise since.
With the nearly ubiquitous nature of social networking, most employers with an employee handbook have at least one policy addressing their employees’ use of social media. However, it is not necessarily clear what Wisconsin employers should and should not include in such policies, especially in light of the recent boomerang nature of guidance from the National Labor Relations Board (NLRB).
Indeed, the NLRB’s Office of General Counsel issued a memorandum in March 2015 that significantly restricted the ability of employers to police the conduct of their employees (including social media behaviors), withdrew that memorandum in December 2017 (following the change in administrations), and issued a new memorandum in June 2018 that purports to clarify how the National Labor Relations Act may impact employers’ efforts to enforce employee conduct rules.
Nevertheless, even though the law in this area does not deal in absolutes, it is possible to discern a number of useful parameters, as set forth below.
What restrictions should be included in a social media policy?
- A prohibition on the use of any intellectual property belonging to the business (including copyrighted or trademarked materials), and any assertion that the employee is speaking on behalf of the business in any manner. A good way to support the latter prohibition is to require employees to include an appropriate written disclaimer in connection to any kind of online content they create that could be interpreted as being sanctioned by the business in any manner. Such a disclaimer could be as simple as explaining that “the postings on this site are my own and in no way reflect the views or have been sanctioned by” the business.
- A prohibition on employees posting and/or responding to any materials on social media during work hours without authorization. This prohibition is critical if a business wants to dissuade employees from spending excessive time on personal social media exploits during working hours. Among other possibilities, the policy could provide that “employees are forbidden from engaging in social media for personal reasons during normal working hours without written authorization from their supervisor.” It is also fairly common to extend such a prohibition to cover the excessive use of employer-provided equipment (such as laptops and cellphones) for personal reasons, and the making of too-frequent personal telephone calls.
- A description regarding what platforms the employer intends its social media rules to impact. This is the “you don’t want to leave a weak spot for employees to exploit” portion of the policy. To avoid such a weak spot, businesses should define “social media” as broadly as possible and set forth a number of different examples of social media platforms, including, but not necessarily limited to, Facebook, Twitter, Instagram, YouTube, LinkedIn, and Google Plus.
What restrictions should not be included in a social media policy?
- Restrictions on employees’ ability to use social media to discuss certain aspects of their job or work environment. Even with the more permissive approach taken by the current iteration of the NLRB, such restrictions would likely be seen as impermissibly restricting employees’ rights to engage in concerted protected activity relating to things such as their wages, benefits, supervisors, and working conditions. For example, a provision suggesting that wage/salary information is confidential and, therefore, cannot be shared through social media almost certainly runs afoul of federal law.
- A complete prohibition on employees’ use of social media at all times. Such a restriction could very easily land a business in hot water with the NLRB for the reasons stated immediately above. Additionally, let’s face it; a blanket prohibition is just not realistic.
What restrictions can a business consider including in a social media policy?
- Restrictions on making defamatory comments or misrepresentations. Per the NLRB’s recent guidance, general prohibitions against making misrepresentations regarding a business, its employees and/or its customers do not infringe upon an employee’s right to engage in protected activity. Businesses should still take steps to ensure that any prohibition cannot be reasonably interpreted to impact factual discussions of working conditions, etc., but a provision barring employees “from misrepresenting the business’ services or products, and from defaming the business, its employees, and/or customers” will likely satisfy applicable laws.
- Restrictions on engaging in inappropriate or harassing behavior. Again, thanks to the recently relaxed guidance from the NLRB, businesses are on solid footing here to proscribe offending behavior, so long as the restrictions do not run too close to things that would obviously be considered terms and conditions of employment. A good example of language that would likely be okay is the following: “Employees may not use social media to engage in harassing conduct that would be illegal under applicable law.”
Certainly, the foregoing examples are not the only provisions that should, should not, or could be included in a social media policy. Depending on the circumstances of your particular business, there are a number of additional provisions that may be relevant. To determine what provisions would be most appropriate, an employer should carefully define what concerns it has regarding its employees’ use of social media and consult with its legal counsel regarding how best to address those concerns.
John C. Gardner is partner and chair of the Labor and Employment Practice Group at DeWitt Ross & Stevens S.C.
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