Every employer should adopt a social media policy to govern employee use of both business and personal social media platforms.
The importance of such policies has been highlighted by recent stories in news concerning the conduct of employees on social media, which show that even good employees sometimes post unprofessional or offensive comments. Prompt action is required by the employer to avoid a public relations controversy and protect the employer’s reputation and brand.
A social media policy should regulate employer-sponsored social media platforms as well as the personal usage of social media by employees, even when the usage is made while off-duty. The First Amendment protects comments made on matters of public concern and, therefore, as a general rule public employers are limited in their ability to regulate employee expression on matters of public concern. Protected speech includes comments conveyed or posted about political issues and candidates as well as comments addressing many of the social issues of the day (gun control, LGBQT rights, government corruption, etc.).
Courts have created an exception to this general rule. Courts afford public employers the right to regulate comments or posts that otherwise interfere with an employee’s First Amendment rights when the government has an identifiable interest that must be protected and this interest outweighs the employee’s right to free speech. The First Amendment is generally inapplicable to private employers.
A social media policy may not prohibit speech by and between employees about the terms and conditions of employment. Employees have a right to discuss conditions in the workplace and express their feelings about management even when these opinions may be unflattering. Social media policies that are overly-restrictive have been deemed unlawful by the National Labor Relations Board. This rule applies to both public and private employers, regardless of whether the work force is unionized.
In light of the above, a social media policy should have two components.
The first component should regulate the manner in which company-sponsored social media sites will be administered. Specifically, the policy should:
- Identify the social media platform(s) that the company has elected to utilize
- Identify the individual responsible for administering the site(s) and monitoring content
- Identify the person(s) possessing the authority to post or convey comments on behalf of the company
- Require the administrator to maintain a central database of all user names and passwords necessary to operate the social media platforms of the company
- Regulate the content of the communication. Unauthorized or inappropriate commentary or posts can expose the company to legal trouble, as such comments may arguably be imputed to the company. Unsuitable comments also risk diminishing the company’s brand name by creating negative publicity directed toward it. Such comments may also generate hostility and distrust among co-workers or between supervisors and subordinates. Public employers should also provide for the retention of records generated in the course of administering social media sites to ensure compliance with their obligations under the Right-to-Know Act.
The second component should regulate the manner in which employees may utilize their personal social media while on or off-duty. Specifically, the policy should prohibit employees from:
- Representing themselves as agents of the company, including operating “unofficial” sites of the company
- Utilizing logos of the company without pre-approval
- Publishing or disseminating confidential and proprietary information of the company.
- Posting racially insensitive remarks, sexual or graphic comments, personal attacks, and comments that promote or foster discrimination.
- To the extent an employee identifies him or herself as an employee of the company, require the employee to disclaim that the views and opinions expressed are that of an individual, and not those of the company.
Read Part 2 of this series for more information on developing a social media policy…
In Part 2 of this series, I address special concerns posed by the First Amendment that limit the ability of public employers to regulate employee speech.
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