Is Your Social Media Policy Illegal?

Are you guilty of having a generic social media policy that reads similar to “employees are prohibited from making defamatory remarks about [company name] on any media”? If so, now is the time to pull up that policy and tighten up language, especially if it has been used as grounds for termination.

The National Labor Relations Board (NLRB) has made it clear in a handful of rulings, most recently with Chipotle, that it is illegal for employers to discipline employees for social media acts that “advocate for improvements to their working conditions.” Employees are free to congregate on social media channels to publicly discuss the terms and conditions of their employment.

As a brand manager, the NLRB’s ruling may have completely turned your world upside down. Not only do you have to worry about customer complaints, but you may also have employees using social platforms to petition for a new employee dress code, discuss the hostile work environment or even openly discuss how to address their overbearing manager. And there’s little you can do about it.

As you review your social media policy, make sure you understand an employee’s rights as defined by the NLRB. Some notables include:

• Using company logo, name and information on social media
• Posting about fellow employees, supervisor and employer (as long as posts do not conflict with anti-harassment and anti-discrimination policy)
• “Friend”ing and/or “Follow”ing fellow employees, managers, supervisors, etc.

Also, be sure to heed the following rules and advice:

• Policy cannot prevent employees from joining forces with other employees to discuss workplace issues, including wages and/or work conditions
• Disciplinary action can only be taken by employer if the social media activity is “non-concerted,” meaning the employee’s post does not involve coworkers, conditions of employment, compensation, staffing levels and discipline, but is instead a personal complaint
• Avoid ambiguity in policy by incorporating language from other policies, such as non-discrimination or anti-harassment, to clarify restrictions
• Include language that the policy “will not interfere or restrict the employees’ rights under the NLRB”

Regardless of the NLRB’s restrictions, it’s important to keep a pulse on what’s being said online by employees. Rather than requesting employees pull their post immediately, work with them one-on-one to address and remedy their complaint. After all, they were hired for a reason and may have escalated their issue to social media, as many do, because they were not being heard.

For more information regarding the NLRB and understanding employee rights, visit: https://www.nlrb.gov/rights-we-protect/whats-law/employers/interfering-employee-rights-section-7-8a1