These days, social media is everywhere. Employees blog, tweet about and chronicle their lives on Facebook, personal websites and elsewhere in cyberspace. Many employers have been dismayed to read employee posts that identify their employer and disparage some aspect of their employment, the business, or their co-workers. Historically, employers have issued policies expressly prohibiting employees from making or publishing disparaging remarks about the company or their employment. Recently, such policies have come under scrutiny by the courts and the National Labor Relations Board as possibly infringing on employees’ federal statutory right to engage in concerted activity with regard to the terms and conditions of their employment. Policy language that employers have used for decades now can constitute the basis of a successful unfair labor practice charge against the company. Discussing these cases in detail is beyond the scope of this advisory. However, the NLRB’s General Counsel has issued several memoranda containing detailed, practical discussions of policy language that the NLRB views as legal and illegal limits on employee use of social media. The General Counsel’s third memorandum on the subject discusses specific limitations on employees’ use of social media, and can be accessed with the following link: 

http://mynlrb.nlrb.gov/link/document.aspx/09031d4580a375cd 

Every employer should review its social media policy to ensure that it is not limiting employee speech in a manner that may now be unlawful. A sample social media policy that is lawful under current guidelines issued by the NLRB is set forth below. Employers should check with counsel for further developments, as this area of the law is developing quickly and no doubt will change further as more cases challenging employers’ social media policies proceed through the courts.

SAMPLE SOCIAL MEDIA POLICY:

[Company] recognizes that social media provides a valuable and important way to communicate and share opinions and information with family, friends, co-workers and business associates. However, use of social media also presents certain risks and carries with it certain responsibilities. [Company] has established the following guidelines for its employees’ use of social media. These guidelines are designed to ensure that [Company] employees who use social media will not violate any of their responsibilities regarding the protection of [Company]’s confidential business information or any of the lobbying, discrimination and other laws and regulations that [Company] is subject to. This policy should be read in conjunction with [Company]’s Computer, Data, Internet, Electronic Mail and Voice Mail Security Policy, its Record Retention Policy and any other policy regarding the use of technology.

GUIDELINES

Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Company], as well as any other form of electronic communication. The same principles and guidelines found in [Company]’s Computer, Data, Internet, Electronic Mail and Voice Mail Security Policy apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks that are involved. Keep in mind that any of your conduct that adversely affects your job performance or the performance of co-workers, or that adversely affects people who work for or on behalf of [Company] or [Company]’s legitimate business interests may result in disciplinary action up to and including termination.

KNOW AND FOLLOW THE RULES

Ensure that your postings are consistent with [Company]’s Computer, Data, Internet, Electronic Mail and Voice Mail Security Policy, [Company]’s Harassment Policy, and laws protecting trade secrets and confidential business information. Inappropriate postings that include confidential information regarding [Company]’s business activities or that may include discriminatory remarks, harassment, threats of violence or similar inappropriate or unlawful conduct will not be tolerated.

RESPECT ELECTIONEERING, LOBBYING AND PRIVATE SOLICITATION RESTRICTIONS

Do not engage in direct or grass roots lobbying or political campaigning in your capacity as a [Company] employee or on any social media run by or for [Company]. You should take measures to ensure that there is no perception of [Company] involvement or support of your personal lobbying or political activities, such as by posting a disclaimer to the effect of “the views expressed here represent my own and not those of [Company].” You may never use [Company] equipment, assets or work time for such activities.  

BE AWARE THAT YOU ARE AN AMBASSADOR FOR [COMPANY]

You must identify yourself as a [Company] employee in any posts relating to [Company] or your work for [Company]. You are more likely to resolve workrelated complaints by speaking directly with your coworkers and/or managers than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, religion, national origin, disability, age or any other status or characteristic protected by law or [Company] policy. 

RESPECT COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS

Do not use, copy or publish intellectual property belonging to [Company] or anyone else unless you have the legal right to do so. Examples include corporate brands, logos, trademarks, photos, essays, video, music, and other proprietary information. 

BE HONEST AND ACCURATE

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Company] or its employees of business associates.

POST ONLY APPROPRIATE CONTENT

  • Maintain the confidentiality of [Company] trade secrets and private or confidential information. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Do not create a link from your blog, website or other social networking site to a [Company] website without identifying yourself as a [Company] employee.
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Company]. If [Company] is a subject of the content you are creating, be clear and open about the fact that you are an employee and make it clear that your views do not represent those of [Company], its employees, or anyone working with or on behalf of [Company]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the view of [Company].”

USING SOCIAL MEDIA AT WORK 

Refrain from using social media while on work time or on equipment provided by [Company] unless it is work-related and consistent with [Company]’s Computer, Data, Internet, Electronic Mail and Voice Mail Security Policy.  Do not use [Company] email addresses to register on social networks, blogs or other online tools utilized for personal communications or matters.

RETALIATION IS PROHIBITED

[Company] prohibits taking negative action against any employee for reporting a possible violation of this policy or for cooperating in an investigation of any such violation. Any employee who retaliates against another for making such a report or cooperating in such an investigation will be subject to disciplinary action up to and including termination.

MEDIA CONTACTS

Associates should not speak to the media on [Company]’s behalf without prior permission. All media inquiries should be directed to ________________.