Employer policies should discuss the appropriate and inappropriate uses of social media on company-provided equipment during work hours. The policies should cover the use of electronic devices, such as computers, laptops and smart phones, in the workplace. Be clear about what information may be accessed and when. Also, be clear about your monitoring practices. For example, an employee’s expectation of privacy will be diminished if you have informed him/her that you monitor employer accounts or employer provided equipment.

You need to be mindful of your company’s overall approach relating to these issues. Some companies take a fairly flexible approach to social media usage, while others take a more restrictive approach.

• Create clear policies about social media use as it relates to your organization. Include these policies in an employee handbook. Consult legal counsel.

Social Media Policies Cannot Prohibit Protected Conversations

Employers must be cautious about the wording of these policies. The NLRB has not only overturned employers’ decisions to discipline for social media posts, but has also taken issue with the underlying policies relied on by the employer as a basis for the discipline, especially those that might infringe on an employee’s ability to discuss work conditions.

In the past, the NLRB examined whether an employer's policies would be reasonably construed to prohibit an employee's ability to discuss his/her working conditions. As mentioned, these rules apply regardless of whether you have a unionized workplace.

In analyzing a facially neutral policy (i.e., one not obviously valid or invalid), the NLRB asks whether the employer’s rule, when reasonably interpreted, interferes with protected concerted activity. If it does, is any interference outweighed by legitimate business justifications? In applying this test, the NLRB has held some social media policies unlawful — and even overturned employers’ decisions to discipline for social media posts.1

For more information, see Employee Handbooks and Employment Policies.

Employers run into problems when their policies are too broad. For example, a blanket rule prohibiting complaints on social media about the business or working conditions is likely unlawful because that can be interpreted to encompass protected topics like working conditions. But with sufficient limiting context and qualifications, emphasizing the legitimate business justifications for the policy, employers may prohibit certain kinds of statements, such as those disclosing the company’s trade secrets or proprietary information, or statements that disparage, harass or threaten other employees.

When drafting social media policies, it’s important to provide specific details and qualifications so employees understand that the policies are intended to serve legitimate business interests, not prohibit NLRA-protected communications.

For more information, see Social Media and Employee Discipline.

Drafting Social Media Policies

Employers can follow several best practices in drafting and implementing social media policies:

• Coordinate with all departments: human resources, legal, IT and sales/marketing.
• Reduce employees’ expectation of privacy for use of employer-owned devices or accounts and for access during working time. Provide advance notice of any monitoring practices that your company uses. Also make certain that your monitoring practices are clear and specific. Monitoring should be done in a reasonable manner that protects the company’s legitimate business interests.
• Take care that the wording of your policies does not limit an employee’s right to discuss the terms and conditions of employment, such as discussions regarding wages and working conditions.
• Be specific. For instance, it is acceptable to prohibit employees from using social media to discuss company trade secrets or to sexually harass other employees. However, prohibiting employees from discussing “non-public” information is considered unlawfully overbroad by the NLRB because it could be interpreted to prohibit discussion of wages.
• Avoid broad language that prohibits employees from discussing “inappropriate,” “unprofessional” or “disparaging” information about the company on social media sites without providing specific examples.
• Remember that employees have the right to discuss working conditions during non-work times and in non-work areas. A policy that prohibits employees from posting to social media with their personal cell phones during breaks may be considered unlawfully overbroad.
• Address the use of company name, logos and trademarks.
• Discourage “friending” on social network sites between supervisors and employees.
• Consider inserting what is often called a “savings clause” into your social media policy: a clause that clearly states that nothing in the policy is intended to chill the employees’ rights to discuss the terms and conditions of employment or engage in activity protected by state or federal law. This will not, according to the NLRB, cure an overbroad policy, but if the policy also provides specific examples, it can help. The key is whether your policy provides enough clarity so an employee will know that he/she can still talk about working conditions.
• Communicate the policy.
• Monitor compliance with the policy.
• Be careful not to enforce your social media policy in a way that would violate an employee’s rights to engage in protected conduct.

• Because of the rapid changes in this area of the law, CalChamber recommends that employers consult legal counsel with any questions regarding drafting a social media and Internet use policy.

• A sample social media policy — along with many more — is available as part of CalChamber’s Employee Handbook Creator ®. Visit our online store to find out more about how to easily create your employee handbook.

1. The Boeing Company, 365 NLRB 154 (2017)