Since the explosion of Facebook, an employer’s right to restrict its employees’ use of social media has been a reoccurring hot button topic. Today, nearly every employer has dealt with some Facebook-type concern. As a result, employers must ask the question – what prohibitions can you lawfully place on an employee’s use of social media?
Last month, the National Labor Relations Board’s (“NLRB”) Acting General Counsel issued a report, intended to provide employers with “guidance” on this issue and set forth the following parameters:
Employers may not implement a rule prohibiting employees from “inappropriate postings” or “inappropriate comments” if the policy does not define these terms;
Employers may not discipline an employee for violation of an overly broad social media rule or policy;
Employers may impose rules forbidding postings which are slanderous or detrimental to the company; and
Employers may impose rules prohibiting postings about the company, co-workers, supervisors, customers or clients that violate an employer’s non-discrimination and anti-harassment policies.
Unfortunately this “guidance” leaves employers with more questions than answers. Employers need to ensure that their social media policies narrowly define what offenses constitute violations of the social media policy and anticipate possible compliance issues with all federal and state regulatory agencies including the NRLB, EEOC and OFCCP. Until courts review agency case decisions, the rules will remain vague and unclear. In the meantime, before disciplining an employee for a Facebook post or for accessing social media websites at work, employers must review their policies to ensure compliance and minimize risks. Policies that do not contain definitions of prohibited conduct are certain to be found unlawful under the NLRB rules. We advise that employers contact counsel to review these policy materials to be certain they are both defensible and address the company’s objectives.
If you have any questions regarding this article or any other employment or labor law question, please contact Doug Seaton or Emily Ruhsam, or any attorney at Seaton, Peters & Revnew at (952) 896-1700