Navigate the Social Media Minefield

Nothing changes faster than the social media landscape and the laws surrounding it.

June 25, 2012

Recent media reports about companies asking staff for their Facebook passwords highlights a larger challenge facing human resource (HR) professionals.

In the world of HR management, nothing changes faster than the social media landscape—and the laws and regulations surrounding it.

While only one state (Maryland) has banned employers from asking staff for their Facebook passwords, there are numerous laws affecting employers and social media. Therefore, adopting sound social media policies is increasingly critical to organizations of all types and sizes.

During the past 10 years, many employers have adopted electronic communications policies prohibiting employees from discussing their employer on social media—from disseminating confidential information to making disparaging remarks on various social media forums.

Unfortunately, many of these policies violate the National Labor Relations Act (NLRA). As a result, the National Labor Relations Board (NLRB) is actively investigating and taking enforcement action against employers with such policies.

Section 8(a)(1) of the NLRA prohibits employers from interfering with employees’ right to form, join, or aid a labor organization, and to collectively bargain for wages and working conditions. Employers violate Section 8(a)(1) if they maintain a work rule that inhibits employees in the exercise of their Section 7 rights (Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 [D.C. Cir. 1999]).

The NLRB has consistently held that overly broad social media policies violate the NLRA. The following examples would violate the act because they’re overly broad and prohibit staff from discussing working conditions. Such policies:

Prohibit employees from making “disparaging comments about the company through any media, including online blogs and other electronic media”;

Allow only “appropriate” discussion of working conditions; and

Prohibit “unprofessional communication that could negatively affect the employer’s reputation or interfere with the employer’s mission, or unprofessional/inappropriate communication regarding members of the employer’s community.”

Aside from staying on the NLRB’s good side, adopting good social media policies can help foster a more harmonious and productive workplace and prevent unintentional violations of other employment laws, such as the Americans With Disabilities Act and Title VII of the Civil Rights Act.

The risk regarding these laws occurs when an employer discovers otherwise private information about an employee, potentially exposing the employer to claims of retaliation in the event of an adverse employment action. An effective social media policy should:

Prohibit employees from using or disclosing an employer’s confidential and/or proprietary information in social media;

Prohibit employees from using the employer’s trademarks or logos;

Prohibit employees from posting confidential or derogatory information about customers, members, and/or vendors;

Require employees to communicate that they’re speaking solely for themselves;

Prohibit employees from posting information that violates other employer policies or policies between the employer and other entities; and

Discourage supervisors and managers from “friending” subordinates on Facebook and similar sites.

By contrast, social media policies that prohibit “disparaging,” “inappropriate,” and “negative” posts likely are unlawful without appropriate language protecting the employee’s rights under the NLRA.

Adopting a social media policy is only the first step. The employer must then disseminate the policy to all employees and follow an even-handed monitoring process.

An employer may adopt a complaint-driven process, only investigating posts that are brought to its attention, or it may actively monitor for postings. The approach it takes, however, should be applied equally and consistently to all employees.

KIMBERLEY McGAIR is a shareholder at Farleigh Wada Witt, Portland, Ore.