Social media is both an opportunity and a concern for businesses and employers in Massachusetts. On the one hand, social media sites are marketing opportunities that allow a business to interact with potential customers. On the other hand, employees can post content to these sites that can damage the company's reputation.
By implementing a social media policy for its employees, a Massachusetts business can keep the benefits while mitigating the risks. However, federal employment law restricts how far these policies can go in protecting the business' interests.
Social Media Policies Do Not Just Protect a Business' Brand
Many business owners see that including a social media policy in your employee handbook or in the employment contract is a huge part of protecting their business' brand. By making it clear to workers that airing grievances about the company online can lead to serious employment consequences, companies in Massachusetts can keep their workers from undermining the business' efforts in building credibility and a strong reputation in the communities they serve.
However, social media policies provide numerous other benefits, as well, including:
- Protecting trade secrets and other sensitive information
- Combating workplace harassment
- Maintaining an efficient workplace
By spelling out the consequences of sharing sensitive workplace information online, like client lists and other internal documents that could help competing businesses, a social media policy can deter employees from deliberately or even negligently sharing those details on social media sites.
Forbidding the use of social media to bully or harass coworkers is another important use of a policy. Not only can the policy be used to penalize workers who are creating a hostile working environment; it can help an employer avoid liability for an employee's wrongful actions.
Finally, having a policy that restricts social media use on the job can also make for a more efficient workplace where employees are not allowed to use sites like Twitter or Facebook during work hours.
Social Media Policies Cannot Prohibit Protected Activities
While employers stand to benefit from enacting a binding social media policy for their employees, the policy can run afoul of federal law if it is too broad.
The National Labor Relations Act, or NLRA, is a federal law that protects the rights of workers in private companies to organize, bargain collectively, and take concerted actions, like go on strike.
While this does not sound like the type of law that would implicate social media policies, the NLRA explicitly allows workers to discuss the conditions of their employment, their wages, and other workplace concerns “for the purpose of collective bargaining or other mutual aid or protection.” This includes discussions about these topics that happen on social media.
A frequent point of contention between workplace social media policies and the protections granted by the NLRA is when workers discuss workplace happenings or criticize their employer or boss online. Preventing or penalizing these negative online comments about a company is one of the chief concerns of many social media policies. However, if the comments are made to garner support for group action by workers, they may be legally protected by the NLRA.
For example, one case by the National Labor Relations Board (NLRB), which oversees and enforces the NLRA, involved a Facebook post in which an employee revealed that Coworker 1 “feels that we don't help our clients enough” at work and was going to complain to her boss about the lack of effort. The post asked other coworkers how they felt about it. Four other workers criticized Coworker 1 for thinking their work performance was substandard. When Coworker 1 complained to her boss and claimed that she was being harassed online, the employee who made the Facebook post and all four who replied were fired. The NLRB, however, ruled that the firings were unlawful because the conversation was concerted activity protected by the NLRA.
Unfortunately, the lines between online harassment and NLRA-protected activities are vague, at best. Crafting a social media policy that protects a business' interests and also complies with the NLRA and workers' rights is something that a skilled employment litigation lawyer can handle.
What are Some Valid Social Media Restrictions that Employers Can Make?
While the protections of the NLRA create some complications for employee social media policies, there are still some things that employers can reliably include in their rules. Some of these are:
- A prohibition against sharing sensitive business information
- Rules against hate speech or discrimination
- A requirement that employees comply with the Federal Trade Commission (FTC) and disclose their relationship with the company if they advertise for it, online
- Role definitions for people who are allowed to post on social media on behalf of the company
- Prohibitions against posting content on behalf of the company that is copyrighted or trademarked by someone else
- A reminder that employees can still face workplace repercussions for actions done on their personal social media accounts
The First Amendment is Only an Issue for Public Employers
A common refrain from employees who are facing repercussions for their inappropriate online behavior is that they have free speech rights under the First Amendment.
The First Amendment, though, only protects someone's free speech rights from government actions, not private action. Unless the employer is the government, an employee's online communications can be restricted or penalized without implicating the First Amendment.
Massachusetts Employment Litigation Lawyers at the Katz Law Group
Your company's employee social media policies have to walk a fine line between the rights of your workers and the interests of your business. They also implicate the happiness and productivity of your company's workers, as well.
The business and contract litigation attorneys at the Katz Law Group can help craft policies that fit your company's unique needs and concerns. Contact them online or call their law office at (508) 480-8202 for legal advice in Marlborough, Framingham, Worcester, or the rest of Massachusetts.