Should Employers Restrict Social Media Use?

Every bit a business owner, your business reputation is important to you. Every bit a result, it may exist tempting to try to identify limitations on what your employees tin can and cannot say on social media about your concern in order to preserve that reputation. But while having a social media policy can be a smart business move, employers must keep in mind that the law does not permit employers to completely control what their employees practice online.

Section 7 of the National Labor Relations Act (the Act) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to appoint in other concerted activities for the purpose of collective bargaining or other common assistance or protection," besides equally the right "to refrain from any or all such activities."

Section eight(a)(1) of the Human activity makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Deed.

Social Media Policies and Employee Rights

While at first glance it may seem that the Human activity has nil to do with social media, in fact, an employer'due south attempt to curtail an employee'southward social media activity or comments can be a violation of the Human action if information technology is adamant that the statements posted on social media are part of "concerted activity" for "common protection."

For example, Department 7 of the Human action allows employees to criticize their employer or their working conditions, even if the criticism is inaccurate, and in some cases, even if it is abusive or defamatory. An employer cannot discipline or terminate an employee for making these statements and may not make a rule prohibiting employees from making these statements.

According to the National Labor Relations Board (NLRB), employers may not, "promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees from exercising their rights under the Human activity." Some corporate employee handbooks attempt to prohibit this kind of activity on the function of an employee by developing rules about what employees can or cannot post on their social media accounts. Employers should utilise caution or consult an attorney when including these rules as role of an employee handbook, since too many restrictions could be considered to violate the employee'due south rights under Department seven of the Act.

The Board's standard for deciding whether a policy is in violation of the Act is based on whether an employee could reasonably think that the policy violates section 7 activity. If and then, the policy may exist considered non-compliant and could result in an NLRB accuse, inspect or fine. In other words, if an employee could believe that a rule restricting what they mail service on social media is intended to foreclose employees from speaking on social media about the terms and conditions of their employment, the employer could be establish to exist in violation.

For case, if an employee posts about problems with their supervisor, or complains almost low pay or other working conditions online, it may be considered part of communicating with other employees about their working conditions, and therefore protected nether the Act. And if an employee is terminated as a result of this action, the company could exist in danger of a wrongful termination claim under the Act.

Many of these cases will depend on whether the action is found to be "concerted" action – the employee is expressing sentiments shared by or discussed with coworkers or previously brought to the attention of management – or whether the post expresses the thoughts of one individual employee. Information technology may not always exist so easy to determine, however, since the NLRB defines "concerted action" to include, "circumstances where a single employee seeks to initiate, induce, or ready for group activity."

What Tin an Employer Control?

An employer does have the right to control what an employee does on the employer'due south time (i.e. during working hours) and with the employer's equipment. An employer too has a right to restrict employees from posting confidential information online, including trade secrets, customer information, and to prohibit posts that would threaten or harass other employees. An employer tin can prohibit employees from using the company's name, logo or other protected marks online, and tin can prohibit them from making false statements about the company.

However, the employer has less command over what an employee posts from their personal computer or mobile device on their ain fourth dimension.

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Posted - 01/22/2019

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