What are the Legal Risks of Disciplining Employees for Social Media Use in the Workplace?

Employees’ use of social media in the workplace can be harmful to employers both legally and from a public relations standpoint. It can decrease company morale in the event employees choose to use social media as a forum to complain about their employer. It can also be costly to employers, as it may result in a loss of productivity during work hours. The use of social media also poses a threat that trade secrets or confidential information will be disclosed, even if done so unintentionally. Given these risks, employers may find themselves inclined to discipline employees for engaging in social media in the workplace, particularly when the subject matter is adverse to the employer.

However, employers seeking to discipline employees for social media posts must consider the application of the National Labor Relations Act (NLRA) to this area before doing so. The NLRA protects the right of employees to exercise “Section 7 Rights,” which guarantees employees the right to self-organize, form, join or assist unions, collectively bargain for changes in wages and working conditions, and engage in other “protected concerted” activities. What constitutes protected concerted activity is relatively broad, but must involve a term or condition of employment (wages, hours, etc.) and must occur for the group’s mutual aid and protection (more than one employee). An employer commits a violation when it engages in conduct that reasonably tends to interfere with the free exercise of employee rights regardless of the employer’s intent. Thus, an employer that discovers through social media that employees are undertaking activities to change their workplace, even if adverse to the employer, must be mindful not to make a negative employment decision based on this information or risk being in violation of the NLRA.

Solution: Adopt a Clear Social Media Policy and Apply it Consistently to All Employees.

A properly drafted and uniformly enforced social media policy is an employer’s most effective tool in protecting itself against both legal liability and potential damage to its reputation. Not only will a clear policy help to limit an employer’s legal exposure, it will also assist in managing employee expectations and ideally limit negative employee behavior. When implementing a social medial policy, employers should be mindful to incorporate the following:

• Advise that all workplace equipment, including computers and workplace email, are employer property. Employees should understand that they have limited privacy in their use of workplace computer systems, and that employers have the right to monitor this equipment at any time;
• Identify what employees, if any, may use social media as part of their job duties, for marketing, public relations, recruitment, corporate communications or other business purposes;
• Identify the company’s level of tolerance for personal use of social media. If the employer does not tolerate any use of social media in the workplace, a zero tolerance policy needs to be clearly stated;
• Advise that all employees are responsible for protecting the company’s goodwill, brands, and business reputation;
• Advise that all employees are to respect intellectual property and confidential information;
• Advise employees not to post anything that the company’s customers, clients, business partners, suppliers or vendors would find offensive (including ethnic slurs, sexist comments, discriminatory comments, insults or obscenity); and
• Identify methods for monitoring and enforcing the policy as well as the consequences for violating the policy.

If you have any questions about disciplining employees for use of social media in the workplace or any specific questions about implementing a social media policy, please contact our office directly.