With the advent of social media, everyone has a public platform to broadcast the details of their lives and their views to the world—your employees have this platform too. What your employees say and do online has the potential to reach over 4 billion social media users across the globe. So what rights do you have as an employer to address social media posts that could affect your workplace? You can write an employer social media policy to alert your employees to your rules and expectations. However, there are legal limits to what that policy can say.
In this article, we briefly review the state and federal limitations on social media policies for employers. But this is just the beginning. To get the most out of your social media policy while staying within the confines of the law, speak to an experienced employment attorney. At Batson Nolan, PLC, our Tennessee employment attorneys are experienced and ready to protect your legal rights as an employer.
Social Media Laws for Employers
Before you draft an employer social media policy, you need to be aware of your obligations under state and federal law. If you violate the law with your social media policy, you could owe your employees damages, and you might have to spend more time, money, and energy drafting a new policy.
What Is the Federal Law Regarding Employee Social Media Activity?
If you are a private employer, one of the most significant federal laws that protects employee speech is the National Labor Relations Act (NLRA). When it comes to speech and conduct, the NLRA protects employee “concerted activities.”
What are concerted activities?
In general, a concerted activity occurs when two or more employees take action to protect or help each other regarding the terms and conditions of employment. A single employee’s actions can also constitute concerted activity if they’re acting on behalf of other employees or trying to induce group action.
Examples of concerted activity include:
- Questions or discussions about pay,
- Questions or discussions about safety concerns, and
- Requests or discussions regarding improving workplace conditions.
A social media post about work can be a concerted activity protected by the NLRA.
When is social media activity concerted?
The National Labor Relations Board (NLRB) enforces the NLRA. From 2011 to 2012, NLRB Acting General Counsel, Lafe Solomon, handed down three memos that gave an outline for when an employee’s social media activity is concerted and protected:
- When employees discuss employment terms and conditions with each other on a social media platform, it is a protected, concerted activity.
- When an employee posts a statement that does not have to do with the conditions at their work but still brings negative attention to their workplace, that is unprotected social media activity.
- When an employee posts about an issue at work that could affect employees negatively, that is protected concerted activity.
The line between what is protected and what is not protected can be very thin. It is important to have an attorney help with your social media policy so you can strike the right balance.
What Is Tennessee Law Regarding Employee Social Media Activity?
If federal law places boundaries on what kind of social media activity employers can prohibit, Tennessee law focuses on how employers can monitor employees on social media. Tennessee’s Employee Online Privacy Act of 2014 does not allow employers to:
- Require employees to sign into their social media accounts to allow employers to observe;
- Ask employees for their social media passwords;
- Require employees to add an employer to their direct contact lists; or
- Punish employees for failing or refusing to grant employer access to their social media.
There are exceptions to these rules if an employee uses company equipment or resources to post on social media. There are also exceptions if an employee posts confidential employer information without permission.
What Should Be in a Social Media Policy for Employers?
One of the biggest keys to writing a good social media policy is to be specific. The government tends to invalidate policies that are overly broad because broad policies have the potential to punish protected activities.
Include Specific Details About the Goals of Your Social Media Policy
The government wants to make sure that your social media policy does not inhibit employee discussions about work conditions. This is why it is a good idea to include a statement in your policy that identifies acceptable purposes for your policy.
Acceptable purposes include:
- Preventing employees from sharing confidential employer information;
- Curtailing offensive posts that are not related to work but still bring negative attention to the workplace; and
- Preventing the use of work resources for personal matters.
Once you have identified these purposes, you need to define them.
Include Thorough Definitions for Your Policy’s Purposes and Terms
Even if the purposes of your social media policy are acceptable, they can be invalid if you define them too broadly. In your policy, you should provide information that explains:
- What constitutes confidential information;
- What specific online behavior will be deemed offensive;
- Whether employee activities using workplace resources will be monitored; and
- How employee activities on workplace resources will be monitored.
Your purposes and terms can also be invalid if you define them improperly.
You have to be careful with the definitions in your policy because the wrong details can spell trouble. For instance, employee wage history cannot be part of your definition of confidential information. Requiring employees to remain silent about their pay is illegal because it prevents them from talking about their working conditions. Also, blanket prohibitions against vulgar language on social media can be illegal because they can penalize an employee for an impassioned discussion about workplace issues.
There are many ways that well-meaning employers can violate the law when they explain the terms of their social media policies. Hiring an attorney to draft your policy is the best way to ensure that it remains effective and enforceable.
We Have the Focus and the Experience to Help You
At Batson Nolan, our Tennessee attorneys have hundreds of years of combined legal experience to help you with your employment needs, including drafting a social media policy. But we don’t just dictate what should be done; instead, we focus on collaborating with you to ensure your specific needs are met. We can achieve the employment law outcomes that suit you best. If you have a workplace legal need, please call us at 931-647-1501 or visit our website for help.