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• When You Don’t “Like” Your Employee’s Social Media Posts and Other Issues Related to Social Media – read now

When You Don’t “Like” Your Employee’s Social Media Posts and Other Issues Related to Social Media

Every few months, I receive a call from an irritated client asking if there’s anything that they can do about an employee’s Facebook or other social media post.  The answer is usually a very unsatisfying, “it depends” and then I elaborate, as I do here.

First, let’s address a common misunderstanding regarding employee speech. The First Amendment relates to government suppression of speech.  The First Amendment does not give the employee of a private employer license to say whatever he or she wants on the internet without repercussions from that employer.  There are, however, other legal restrictions on private employers related to employee social media activity.

In 2012, Maryland became the first state in the nation to pass a law prohibiting employers from requiring an employee or applicant to disclose user names, passwords or other means for employer access to an employee or applicant’s social media accounts.  Employers also are prohibited from certain federal, state and local laws from retaliating against employees who complain about harassing or discriminatory conduct or safety concerns.

Section 7 of the National Labor Relations Act (“NLRA”), which applies to most non-supervisory employees in private sector employment,[1] also provides protections for employee speech.  Under the NLRA employees are entitled to engage in “protected concerted activity” which, among other things, means two or more covered employees are entitled to engage in discussion about the terms and conditions of work.  A sole employee complaining about the employer is not engaged in “concerted” activity, but when another employee joins in the discussion, the NLRA applies.  The National Labor Relations Board has found that even facially neutral policies can violate the NLRA when the policy can be construed to impair an employee’s right to communicate with co-workers about the terms and conditions of employment.  For example, a general non-disparage policy prohibiting employees from saying bad things about the company with customers or employees, may inhibit an employee’s ability to engage in protected concerted activity with co-workers. A recent NLRB advice memo found that an employer’s policy requiring employees to identify themselves on social media violated their Section 7 rights.  The NLRA has its limits, though.

An employer may lawfully ban employees from posting anything that is discriminatory, harassing, bullying, threatening, defamatory or unlawful. An employer may also prohibit an employee from posting any content, images or photos that they do not have the right to use, such as company or customer proprietary information. An employer may also require employees who comment on social media about the company to make it clear that they are not speaking on behalf of the company.  Finally, an employer may prohibit an employee’s use of social media during work hours.

Employers should adopt carefully crafted social media policies that define restrictions on employee social media use, but in compliance with applicable law. If you have questions on how to do so properly, please contact our Employment & Labor Law Group.

[1] It is a common misunderstanding that the NLRA only applies to union employees or workplaces in which there is a union.

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