Social media usage is now ubiquitous:
- Facebook users spend more than 10.5 billion minutes per day on the website.
- LinkedIn has more than 277 million members in over 200 countries and territories.
- Twitter has 230 million active users who collectively post 500 million Tweets every day.
This is an ever-increasing area of litigation. In a series of recent decisions, the National Labor Relations Board (“Board”) has found social media policies unlawful because those interfere with employees’ rights to act collectively. It has found employers in violation for policies that
- prohibit posts that are inaccurate or misleading or that contain offensive, demeaning or inappropriate remarks;
- prohibit posts discussing non-public information, confidential information, and legal matters;
- threaten employees with discipline or criminal prosecution for failing to report violations of an unlawful social media policy;
- prohibit the use of the employer’s logos or trademarks;
- discourage employees from “friending” co-workers;
- prohibit online discussion with government agencies concerning the company; and
- prohibit employees from making statements that are detrimental, disparaging or defamatory to the employer or discussing workplace dissatisfaction.
Beyond the content of social media posts, there is also the loss of work time. Thus, employers need to deal with three discrete concerns: (1) use of social media in evaluating applicants; (2) limits on social media content by existing employees; and (3) lost work time in using social media at work.
Here is a social media policy based off of the Board’s own model.*
Sample Social Media Policy
Use of social media presents certain risks and carries with it responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media. This policy applies to all employees.
1. Guidelines: Social media can mean many things, and includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or chat room, whether or not associated or affiliated with the company, as well as any other form of electronic communication, including but not limited to Facebook, Twitter, Tumblr, Flickr, Instagram, etc.
You are entirely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees, or otherwise adversely affects clients, customers, vendors, suppliers, or people who work on behalf of the company’s legitimate business interests, may result in disciplinary action up to and including termination.
2. Know and follow the rules: Carefully read these guidelines, the company’s [EEO policies, Code of Conduct, etc.], and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
3. Respectfulness: You should always be courteous to fellow employees, clients, customers, vendors, and suppliers. You are more likely to resolve work problems by speaking directly with your co-workers or supervisor(s) than by posting complaints on social media. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that are malicious, obscene, threatening or intimidating, that disparage employees, clients, customers, vendors or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation, or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.
4. Honesty and accuracy: Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Never post any information or rumors that you know to be false about company, fellow employees, consultants, clients, customers, vendors, suppliers or competitors.
5. All content posted should be appropriate and respectful: Maintain the confidentiality of company trade secrets and confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications. Do not create a link from your blog, website or other social networking site to a company website without identifying yourself as a company employee.
6. Social media at work: Do not use social media while at work or on company equipment, unless it is work-related and authorized. Do not use your company email to register on blogs, social networks, or other forms of social media.
7. Personal opinions only: Do not represent yourself as a spokesperson for the company. If the company is a subject of the content you are creating, be clear and open about the fact that you are an employee and clarify that your views do not represent those of the company, fellow associates, members, customers, suppliers or people working on behalf of the company. If you do publish a blog or post online related to the work you do or subjects associated with the company, clarify that you are not speaking on behalf of the company.
8. No retaliation: The company prohibits taking adverse action against any employee for reporting a possible deviation from this policy or for cooperating in an investigation. Any employee who retaliates against another employee for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.
*See OFFICE OF THE GENERAL COUNSEL, Division of Operations-Management, MEMORANDUM OM 12-59 (May 30, 2012).
WELCOME TO THE EDITORIAL BOARD DEBATE ON SOCIAL MEDIA POLICIES
Phil’s policy is illegal under 2014 Board case law, which trumps the 2012 guidance from the Board’s general counsel. Here is my counter policy and explanation:
SOCIAL MEDIA POLICY
1. Work time is for work. Posting or reading online when you should be working is like sleeping at work: very bad.
2. All other rules that apply at work (“thou shall not sexually harass co-workers”; “thou shall not steal trade secrets”; etc.) apply not only live but also digitally.
Social media may not even need a separate policy. There is no need to have a second floor policy nor a telephone policy: same rules as on the first floor and phone is same as live.
I completely disagree with you on this one. People are using social media at work and at home in ways that could impact that company (like bad mouthing customers or competitors, thinking that it’s personal and not imputed to the company). This should be addressed in policies rather than sticking our heads in the sand.
My policy does and solves the legal problem. In fact, recent Board law holds that portions of their own model policy (see above policy ¶ 5) are illegal. See Flex Frac Logistics, 360 NLRB No. 120 (May 30, 2014) (termination of employee for disclosing client charges is legal but rule forbidding disclosure of confidential information is illegal).
Whatever! You are a damn neo-Luddite. I’ll continue working to find solutions that work for each individual client. Of course, even a confidentiality policy that does not explicitly state that wages are not confidential information could be “unlawful” now, so it’s not like the NLRB is using a lot of common sense. Employers must be aware that there is that risk if they are going to address social media use by their workforce in a robust manner. Employers must weigh the benefits of a carefully crafted social media policy that can protect their interests in the new, constantly connected world, versus the risk that the NLRB may come knocking.