Angry Reacts Only: Legal Limits On Social Media Policies

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Vinson & Elkins LLP

As the presidential election draws closer and while remote work arrangements continue, employers may find that they have more opportunities to apply their social media policies in response to emotionally charged posts by employees. While there are many legitimate reasons to enforce social media policies, employers should remember that their ability to regulate employee online activity is limited in part by state and federal laws.

In the realm of labor law, the National Labor Relations Board reaffirmed this warning only a few days ago. A trade association representing interpreters for the deaf had deleted several Facebook posts calling for unionization and discussing work conditions for trade members, and an administrative law judge found that the trade association’s actions violated the National Labor Relations Act (the “NLRA”) by constituting interference with its members’ rights to engage in protected, concerted activity.

Although the Board reversed the ALJ because the trade association members who had written the posts were not employees of the association (and therefore did not enjoy NLRA protections), the decision serves as a reminder that employee social media activity may be protected by federal law in certain circumstances, even if it otherwise runs afoul of an employer’s social media policies.

More broadly, employee social media posts can be protected by other laws. This may include federal anti-discrimination, anti-retaliation or whistleblower laws (for example, posts concerning complaints of harassment or other illegal activity may be protected under federal law). Multiple states also impose restrictions on employers’ ability to regulate employees’ social media activity outside of work. California, for instance, protects employees’ rights to engage in political activity without punishment, and employers are prohibited from establishing policies that prevent employees from exercising that right.

When drafting or enforcing a social media policy, employers should be mindful of their obligations under applicable federal and state law. Once these obligations have been accounted for, any policy an employer relies on should be both clear about the conduct it prohibits and consistently enforced.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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