Employer Restrictions on Social Media

By:  Steven J. Olsen, J.D.

Employers cannot ignore the ever changing status of the law regarding social media and should have in place a social media policy with a plan for updating that policy.  The law must keep pace with the rapid evolution of social media, and notable changes continue to occur as a result of that association.

The National Labor Relations Board (“NLRB”) continues to take a strict approach on private employers’ social media policies.  Many private employers have been found liable for making overbroad prohibitions on the use of social media.  Recent violations have included: (1) requirements that all statements be completely accurate and not misleading; (2) warnings about thinking carefully about ‘friending’ co-workers on social media sites; (3) restrictions against any statements that could be considered harmful or disparaging to the company; (4) limitations on the distribution of confidential or proprietary information without defining said terms; (5) broad restrictions on the inability to post anything with the company’s logo or trademark; and (6) general prohibitions on communicating with the media or government agencies.

Many surmised that a general disclaimer to the employer’s social media policy stating that none of the prohibitions in the policy applied to an employee’s right to engage in activities protected by Section 7 of the National Labor Relations Act (“NLRA”) would eliminate the ambiguities that may have been otherwise caused by an overly broad provision.  The NLRB has recently ruled that a safe harbor will not be created by the general disclaimer against overbroad provisions otherwise in violation of the NLRA.  The disclaimer is, however, still helpful to include in a well drafted policy if it notes that no prohibition outlined in the policy is applicable to statements made or actions taken by an employee with respect to the employee’s rights to engage in concerted activities (activities engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself) for the purpose of collective bargaining or other mutual aid or protection.

Social media plays a major role in business today, and employers must be equipped with a strong policy to protect the business and their employees.  Concurrently, because of the extraordinary growth in electronic technology and the relative newness of social media on the legislative scene, a strong policy today may not mean a strong policy tomorrow.  Employers must have a plan to regularly review and update their social media policy to comply with the ever-changing laws, regulations, and judicial opinions.

 

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance that your interpretation of these materials is appropriate to your particular situation.

 ©  Yoder Ainlay Ulmer & Buckingham, LLP [September 2012]