The use of social media as a communication tool has dramatically increased over the last decade in people’s personal and professional lives. Social media, such as Facebook, Twitter, Instagram, and Snapchat (Snapchat isn’t just for kids anymore), allow users to create online communities and share information, ideas, messages, photos, videos about everything from vacation pictures to their employment. And, this tool is changing rapidly. While currently people periscope about their lives, the future of social media is evolving into a more tailored media environment. Workplace interactions in the near future may look very different than they do today – employee interfaces built around chat rooms and searchable archives (i.e., the Slack interface) which will replace the dinosaur email system.
This runaway expansion of social media hasn’t gone unnoticed by companies. Businesses effectively utilize social media every day to recruit new talent, market services and/or products, create market loyalty, promote the brand, and generate sales and leads. While all these positive results from social media are great for the bottom line, there are legal concerns about its unrestricted and unfettered use by employees.
What are the business concerns about employee social media posts?
Employees who run amok on social media with criticisms of the company, management, the product, and/or the workplace environment create a bit of heartburn for companies. Companies are also concerned that employees may disclose confidential, proprietary and customer information online, or employee posts could be viewed as unlawful harassment by co-workers.
How does a company formulate an effective social media strategy to tackle these concerns?
Social media is an extension of other forms of business communication – telephone, email, meetings, and letters. In this respect, this is just a new context for the common employment issues that businesses already face. Therefore, the first step is to consider revising the company’s existing policies to include social media platforms. Second, develop a social media policy that focuses on the high level issues of what is allowed and what is prohibited employee conduct on social media. Lastly, communicate and train employees to leverage the benefits of social media in a positive way that protects the company brand.
What are the legal considerations when developing a social media policy?
What about restricting an employee’s free speech? The right to free speech allows people to express their opinions without interference or constraint by the government. The Constitution doesn’t apply to private employers, so employees can’t raise a First Amendment claim. However, businesses must respect employees’ right to engage in “protected concerted activity,” which is the right to talk amongst themselves about the working conditions. This protection extends to social media communications amongst employees.
The National Labor Relations Act protects the rights of employees to take action regarding their terms and conditions of employment, including social media activity. The National Labor Relations Board (“NLRB”) decides wrongful termination claims by employees against businesses who claim a violation of this right. Moreover, the NLRB reviews and determines the legality of company policies that may infringe on such rights. Earlier this year, the NLRB found T-Mobile’s employment handbook policy that required workers “to maintain a positive work environment by communicating in a manner that is conductive to effective relationships” to be a violation of worker’s rights to engage in concerted activities. Given these potential legal ramifications, a broad policy is to be avoided.
The best approach to developing an effective, enforceable policy is to identify the actions and communications that are prohibited (such as, disclosure of company financial, customer, intellectual property, marketing, strategy and other confidential company information; communication regarding company legal cases and information; and, any communication that is discriminatory and unlawful), while also carving out the communications about working conditions that the NLRA protects.