The general framework for how businesses should set up social media policies is still under construction as an increasing number of cases come under scrutiny by the courts and regulators. Presently, a company needs to keep in mind a spaghetti-like tangle of rules, laws and guidelines that can sometimes be at odds.
It is wise for companies to consider their own social media policies as being more like guidelines and less like carved-in-stone rules. Ultimately they should be about educating workers to use common sense when they use social media.
Freedom of speech: Companies should become familiar with the National Labor Relations Act's rules protecting employees' freedom-of-speech rights. The act protects the rights of all employees (not just those in unions) to enjoy freedom of speech in relation to collective bargaining or other discussions of mutual aid. The act is usually interpreted broadly and companies have already been swatted down when they have fired employees for saying and posting things on their personal social media accounts. A rule that controls what employees may post on their personal social media accounts is in danger of being struck down.
This applies even to remarks that would have resulted in an employee's being fired if said in person. The NLRA recognizes that social media is a different animal. Since personal social media accounts are not used for employees’ commercial purposes, even the company’s name and logo can be used unfettered by employees.
A business owner whose corporate social media policy keeps employees from maligning the company or customers or giving out confidential business information should know that workers have certain rights to speak publicly and among themselves. At the same time, businesses can protect themselves from a leak of trade secrets or confidential business information and knowledge.
Attitudes toward customers: Companies do have more protection when it comes to employees' attitude toward a business' customers. There have been distinctions made between an employee's posting uncomplimentary updates about the firm and a worker's disparaging the company’s customers. The employer has more protection when the postings deal with customer relationships. Businesses should be sure to include policies and procedures forbidding unlawful harassment on social media.
Employers also have increased leverage over employees using a business' social media networks and accounts. Companies should adopt a policy that does not allow employees to display items of a personal nature or interest on business social media networks. If a company permits its workers to post personal matters on such outlets, it is clearing the way for allowing employees to post almost anything on them. Businesses are not allowed, under current law, to be choosy about which items employees can post on a company’s social media. Either every personal post is allowed or none.
State laws: California is one of about 12 states with laws limiting an employer’s right to access employees' social media accounts. Other states are reviewing these laws and considering similar steps.
With current state laws, companies need to be watch out for any contact with employees through social media. Depending on the laws' interpretation, employers might not be able to friend or connect to an employee via social media through the company accounts.
While many of these state laws have not been litigated, cases will eventually arise. Some laws include exceptions in cases of unlawful activity like harassment.
A decision in Boston: Recently an administrative law judge in Boston ruled that some provisions of an employee handbook issued by Boch Imports d/b/a Boch Honda violated the NLRA. While the court’s discussion focused mainly on Boch’s policy of keeping employees from wearing on their clothing a pin (or other items) not provided by the company, there was discussion about the company’s policies on employee behavior when engaging in activity on social media networks.
Boch Import's policies were found to be too restrictive. For example. the NLRB found problems with the following rules:
"An employee should not refer to the company if the employee’s posting is inconsistent with or would harm the company’s brand or reputation."
"Even if conducted off company property and on personal time, any posting that has the potential to have a negative impact on the company, might be subject to disciplinary action."
"Videos and/or photos which are recorded on the company’s premises may not be posted without the company’s permission."
An experienced employment attorney should always be consulted when a company creates a policy so it will protect both the interests of your business and employees’ rights.