Only a few days after being hired by the University of Michigan’s football program as the assistant director of football recruiting, Glenn Schembechler (son of longtime Michigan head coach Bo Schembechler) resigned after his questionable social media activity came to light. According to The Detroit News, a review of Schembechler’s Twitter timeline showed he had “liked” numerous posts that were racially offensive, including posts suggesting slavery and Jim Crow laws had a positive impact on strengthening black families. After becoming aware of Schembechler’s social media activity, Michigan Athletics issued a statement announcing his resignation and emphasizing the university’s commitment to diversity, equity, and inclusion.
Unfortunately, Schembechler is only the latest in a long line of employees who have lost their jobs due to inappropriate social media activity.
Social Media Policy: A Must-Have for Employers
The ubiquity of social media in modern life, and the potential negative consequences companies face for not addressing social media scandals appropriately, underscores the need for companies to have a robust social media policy in place.
Among other things, a good social media policy should set forth the circumstances under which your employees may make public comments on behalf of the employer and give employees notice of the types of social media activity that may subject them to disciplinary action. As you implement a social media policy or review your current policy, you should be forewarned that the National Labor Relations Board (NLRB) has been closely scrutinizing employers’ social media policies for broad language that may deter employees from engaging in protected concerted activity, which is a violation of the National Labor Relations Act (NLRA).
Generally, under Section 7 of the NLRA, employees are permitted to communicate with each other (on social media or otherwise) regarding pay, benefits, and working conditions, even if it portrays their superiors or the company as a whole in a negative light. According to the NLRB, social media policies should not be so broadly worded that they prohibit employees from discussing wages or unfavorable working conditions.
An employee’s comments on social media are usually not protected, however, if the employee is merely airing a personal gripe that doesn’t pertain to working conditions or doesn’t have some relationship to group action.
Staying Within the Character Limits
The NLRB has found the following broad policy language to violate the NLRA because employees could reasonably construe the language as restricting protected discussions with their coworkers (whom they may follow or be friends with online):
- Do not disclose the company’s confidential or other proprietary information.
- Do not make disrespectful comments about the company, other employees, customers, or business partners.
- Do not post unwanted, offensive, or inappropriate material online.
- Do not pick fights with others while online.
- Do not make embarrassing, hurtful, or derogatory comments.
- Do not discuss sensitive topics such as politics and religion that others may find offensive.
On the other hand, the NLRB has found the following policy language, which is considerably narrower than the language shown above, to be lawful:
- Do not disclose confidential information not otherwise available to persons or firms outside of the company.
- Do not disclose confidential financial data or other nonpublic proprietary company information.
- Do not share confidential information regarding business partners, vendors, or customers.
- Do not use the company name to endorse, denigrate, or otherwise comment on a person, a product, a cause, or an opinion.
- Do not use photographs of coworkers without their consent.
- Do not engage in threatening, intimidating, or coercive conduct or engage in any other conduct that would interfere with the job performance of fellow employees.
- Do not make statements or engage in activity that would be considered harassment under the company’s antiharassment policy.
- Do not use slurs, derogatory comments, or insults related to a protected characteristic (such as race, religion, sex, national origin, disability, etc.).
Lean on Good Faith and Look Ahead
In addition to drafting your social media policy within the parameters deemed lawful by the NLRB, you may also want to include the following statement: “Nothing in this policy is intended to discourage or prohibit an employee’s right to engage in protected concerted activity under the NLRA.” While including this statement won’t save an overly broad policy that deters protected concerted activity, it may help demonstrate the employer’s good-faith efforts to comply with the law.
As with nearly every employment law issue, the lawfulness of social media policies is a dynamic and ever-changing area of the law. Consequently, employers should have their social media policies reviewed and updated regularly. Last but certainly not least, always seek advice from your employment law counsel before disciplining or terminating an employee due to social media activity.
Until next time, HR pros