Developing a Social Media Policy for the Workplace

Why You Need a Social Media Policy

Employees use social media. They will post about their jobs, their coworkers, their frustrations, and their achievements. Without clear guidelines, employers risk reputational damage from careless posts, disclosure of confidential information, harassment that extends into online spaces, and — just as importantly — overreacting to employee posts in ways that violate the law.

A thoughtful social media policy sets boundaries while staying within the legal guardrails established by the National Labor Relations Act (NLRA) and other employment laws.

The NLRA Constraint

Even in non-union workplaces, the NLRA protects employees' right to engage in "concerted activity" — discussing wages, working conditions, and workplace concerns with each other. The National Labor Relations Board (NLRB) has consistently held that this right extends to social media.

This means a social media policy cannot:

• Prohibit employees from discussing wages or compensation with each other (including on social media)
• Ban all "negative" or "disparaging" comments about the company, management, or working conditions
• Require employees to get permission before posting anything work-related
• Prohibit employees from contacting the media about workplace issues

Policies with overly broad language — even language intended to be common sense — have been struck down by the NLRB because they could be interpreted to chill protected activity.

What Your Policy Can Address

Your policy can lawfully address:

Confidential Information

Prohibit the disclosure of trade secrets, proprietary business information, customer data, non-public financial information, and other genuinely confidential material. Be specific about what constitutes confidential information rather than using a vague catch-all.

Harassment and Discrimination

Make clear that your anti-harassment and anti-discrimination policies apply to social media conduct as well. An employee who harasses a coworker online is subject to the same consequences as one who does so in person.

Impersonation and Misrepresentation

Require employees to make clear they are speaking for themselves and not on behalf of the company when posting about work-related topics. Prohibit employees from creating social media accounts or posts that appear to represent the official voice of the company without authorization.

Customer and Client Privacy

Prohibit sharing customer or client information, photos of customers or clients, or details of customer interactions without authorization. This is particularly important in healthcare, financial services, and other regulated industries.

Use of Company Resources

You may restrict personal social media use on company time and company equipment to reasonable levels, just as you may restrict other personal activities during work hours.

Drafting Guidelines

Use specific, narrow language rather than broad prohibitions. Instead of "do not post anything negative about the company," write "do not disclose trade secrets, proprietary formulas, or non-public financial information."

Include a savings clause. State that the policy is not intended to restrict employees' rights under the NLRA or any other applicable law. For example: "Nothing in this policy is intended to interfere with employees' rights under the National Labor Relations Act to discuss wages, benefits, or other terms and conditions of employment."

Provide examples. Help employees understand the line between acceptable and unacceptable conduct by providing clear examples of each.

Distinguish between personal and official accounts. Employees managing company social media accounts in an official capacity have different obligations than employees posting from personal accounts.

Social Media and Hiring

Many employers review candidates' social media profiles during the hiring process. This practice carries risk:

• You may see information about protected characteristics (race, religion, age, disability, pregnancy) that you would not otherwise have, creating potential claims that the information influenced your decision
• Some states restrict employers from requesting social media passwords or requiring applicants to log in to their accounts during interviews

If you choose to review social media, do so consistently for all candidates in the same position, limit your review to publicly available information, and document that your decision was based on legitimate, job-related factors.

Enforcement

Apply your social media policy consistently. An employee who discloses confidential information should face the same consequences regardless of their position or popularity. Document violations and follow your standard disciplinary process.

Before taking action against an employee for a social media post, consult with HR or legal counsel to determine whether the post is protected activity under the NLRA. The cost of a brief legal review is far less than the cost of an unfair labor practice charge.