Private-Sector Employers: Updating Your Social Media Policies - BB&K's Joseph Ortiz Writes About the Ever-Evolving Regulations Involving Social Media

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Most companies focus their social media policies almost entirely on listing the things the employer finds unacceptable to post and share:

- Avoid defamation, obscenities or other inappropriate content.
- Never discuss internal or sensitive company information.
- Always respect third-party copyright and trademark rights.

Unfortunately, because the tech-savvy youth tend to “check in” everywhere and “post” everything, these kinds of blanket prohibitions have led to a significant number of employee terminations. In May 2011, Business Insider published “17 People Who Were Fired For Using Facebook.” Many of those terminations stemmed from employee posts critical of their employers. That trend continues today, according to an Internet search for the phrase “Facebook Firing.”

The first sign that these kinds of social media policies were overbroad came in October 2010, when the National Labor Relations Board filed a complaint against American Medical Response of Connecticut.

In that case, the employee was fired for posting Facebook comments describing her boss as “a scumbag” among other more colorful things. Co-workers posted supportive remarks. The labor board stated that the posts constituted a protest of supervisory actions and were, therefore, a “concerted activity” protected under Section 7 of the National Labor Relations Act. Unfortunately, because the act is known primarily for governing employer relations with unions, many companies ignored this case.

On May 30, 2012, however, the labor board’s general counsel issued a 24-page memorandum outlining its general concerns with social media policies as enforced, and the labor board began to strike overbroad social media policies that prevent employees from discussing workplace concerns, whether the employees were members of a union or not. The labor board’s analysis made unlawful many of the “typical” social media policy bans, including the three prohibitions listed earlier.

In addition to the national labor board restrictions, California enacted AB 1844, which took effect this year and expressly bans a private-sector employer from requiring an employee to: (1) divulge a username or password for the purpose of accessing personal social media; (2) access his or her personal social media account in front of the employer; or (3) divulge “any personal social media” (presumably printouts of contents).

While there is a carve-out allowing employers to request social media “relevant to an investigation of employee misconduct,” the law generally makes it illegal for the employer to discipline an employee who refuses to comply with an employer request that violates the new law.

The law does not expressly state that it also applies to public-sector employers but the California Legislature is considering passage of a bill that would do so.

Given the recent significant changes in the law, employers in the private and public sectors should ask themselves the following questions:

Does your policy allow legitimate concerted employee activity? Recent cases have shown that the national labor board will allow social media policies that can be reasonably interpreted not to interfere with employee communications regarding wages, hours, or other terms and conditions of employment.

Does your policy note employer restrictions on access? Policies often function to remind human resources professionals and management of employer restrictions. Recent state restrictions on employer access to social media should be referenced.

Does your policy differentiate between advice and prohibitions? While common sense would dictate that posting certain material is ill-advised, failure to make this distinction can lead an overly aggressive manager to seek to terminate an employee for simply having poor judgment. An overly broad policy can be interpreted and enforced in ways that would violate the labor board’s restrictions.

If your social media policy has not been modified in the past five years, it’s likely that it needs updating if for no other reason than to adequately address the changed social media landscape and new media platforms.

Before instituting policy changes, employers should carefully consider how employees use social media and enlist the help of a human resources professional or attorney to assist in drafting a policy that balances employer concerns against the emerging law.

* This column first appeared in The Press-Enterprise on June 16, 2013. Republished with permission.