Developing a Social Media Policy for Your Workplace

Social media policies help employers manage the intersection of personal expression and business interests. However, overly broad policies can violate the National Labor Relations Act (NLRA), which protects employees' rights to engage in concerted activity about working conditions. A well-crafted policy balances protection with legal compliance.

NLRA Considerations

The National Labor Relations Board (NLRB) has scrutinized employer social media policies extensively. Key principles:

• Employees have the right to discuss wages, working conditions, and other terms of employment with coworkers, including on social media
• Policies that could reasonably be interpreted as restricting this right are unlawful, even if that was not the employer's intent
• Blanket prohibitions on "negative" or "disparaging" comments about the company are likely unlawful
• Rules prohibiting discussion of confidential "employee information" or "personnel matters" may be overly broad
• These protections apply to all private-sector employees, not just those in unions

What You Can Include

Despite NLRA limitations, employers have legitimate interests they can protect:

• Confidential business information: Prohibit disclosure of trade secrets, proprietary information, and non-public financial data
• Client and customer privacy: Require compliance with confidentiality obligations to clients and customers
• Harassment and threats: Prohibit harassment, threats, and discriminatory statements directed at coworkers
• Impersonation: Prohibit employees from speaking on behalf of the company without authorization
• Intellectual property: Clarify that work product and company intellectual property belong to the company
• Professional conduct: Set expectations for employees who identify themselves as company employees online

Drafting Tips

Write your policy to withstand NLRB scrutiny:

• Include a savings clause stating that nothing in the policy is intended to restrict employees' rights under Section 7 of the NLRA
• Use specific examples of prohibited conduct rather than broad, vague prohibitions
• Distinguish between personal social media use and social media use on behalf of the company
• Avoid requiring employees to submit social media content for pre-approval
• Do not require employees to disclose their personal social media passwords or friend/follow the company

Social Media Use During Work Hours

Address personal social media use during work time:

• You may establish reasonable limits on personal social media use during work hours
• Specify that personal social media use should not interfere with job duties or productivity
• Address whether personal devices may be used during work hours
• Consider whether certain positions require stricter limitations due to safety or customer service requirements

Monitoring and Enforcement

If you monitor employees' social media activity:

• Disclose any monitoring practices in the policy
• Apply the policy consistently regardless of the viewpoint expressed
• Consult legal counsel before taking disciplinary action based on social media posts to ensure the activity is not protected under the NLRA
• Document the specific business reason for any adverse action related to social media conduct
• Do not request or require access to employees' personal social media accounts, as many states have laws specifically prohibiting this