Companies urged to fine-tune social media policies

Companies need to draft their social media policies for employees carefully and in a targeted fashion to avoid drawing regulatory fire, according to Kelly Ann Bird, director of employment and labor law at Gibbons.

Ninety percent of workers admit to recreational use of the internet, including social media platforms, during company time – activity that raises concerns about issues such as the release of sensitive information or negative comments, Bird told attendees at a Practising Law Institute event in New York last week. 

The first thing a company can do to minimize such risks is create a policy outlining its expectations of employees’ behavior, but there are limits to how far this can be effective, Bird said. She argued that this is at least in part because the National Labor Relations Board (NLRB) has in recent years asserted itself into the social media space. 

The NLRB is charged with upholding the National Labor Relations Act (NLRA) to protect employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also tackles what it sees as unfair labor practices committed by private sector employers and unions. Section 7 of the NLRA states, among other things, that employees have the right to engage in ‘concerted activities’ for their ‘mutual aid or protection’ regarding the terms of conditions of their employment.

Anti-negativity, anti-profanity and other types of clauses in employment policies are being found to infringe on such NLRA-backed rights, leading to companies finding themselves in trouble with the board, Bird said. The NLRB has taken the stance that a policy is in violation of the NLRA if it is overly broad and if a reasonable interpretation of it means it falls foul of Section 7, she noted – for example, many companies include a courtesy clause in their policies that has been found to contravene Section 7.

But the board is more likely to accept more descriptive and targeted language – for example: ‘Do not make negative comments about our customers on social media’ – according to Bird. She told attendees that a well-drafted policy that is effective and enforceable should:

• Notify employees of what content and behavior is acceptable on social media
• State when employees are allowed to use social media during work hours, if at all
• Reference other company policies, such as those covering non-discrimination, confidentiality and the acceptable use of computers
• Identify potential repercussions
• Inform employees that the company will monitor their social media use
• Provide training.