Can you dictate what employees can and cannot do on social media? ... Up to a point.
These guidelines, which may be helpful in crafting a social media policy, apply to companies whether or not they are unionized.
1. You can’t “chill” a worker’s right to discuss the workplace
You can’t limit employees’ rights to talk about workplace conditions, wages, or how other employees or the company is performing. Putting in a “privacy clause” (about not sharing personal information about co-workers) does not make such limitation permissible.
2. You can bar “rants”
While talking about workplace conditions is permissible, ranting about it is not. What’s a rant? The NLRB says it is inappropriate comments and posts that are not part of a dialogue.
3. You can require confidentiality for trade secrets
While employees can discuss workplace conditions, company policy can restrict their right to talk about trade secrets. However, you cannot threaten discharge or criminal activity for failing to report any disclosures.
4. You can bar egregious behavior
You can limit employees from posting anything that is unlawful. This includes posts amounting to sexual harassment, threats of workplace violence, bullying, or malicious activity. You can also bar obscene language as part of an overall ban on egregious behavior.
5. You can bar use of social media during work hours
Because the equipment is yours, you can dictate when and the extent to which it is used by employees for social media activities.
6. You can’t bar an employee from outside posts
While you can suggest or request that employees refrain from discussing company matters on their own time (with their own equipment), you can’t bar it. However, the NLRB did uphold one company’s policy barring the display of a “bad attitude” or acting offensively.
7. You can restrict the use of the company’s IP
Employees may be barred from using company logos and other protected marks for commercial purposes. However, they can use company marks for noncommercial purposes, such as in discussions of workplace conditions.
You can bar employees from using the company’s copyrighted material without permission.
8. You can’t require employees to seek permission for posts
You cannot make employees ask permission before posting comments about workplace conditions. You can, of course, suggest that they check on whether other comments may or may not be related to non-disclosable confidential company information.
9. You can’t bar discussions on the company’s labor policy
Whether or not the company is a union shop, employees cannot prohibit employees from talking about union activities. What’s more, if you implement a social media policy in response to any such activities, the NLRB likely will scrutinize it.
10. You can require that employees disclose their posts as personal opinions
Employees can be barred from representing themselves as company spokespersons. When posting opinions, they should make it clear they are personal opinions and do not represent the company’s views.
Your company’s social media policy is not automatically permissible merely by including a so-called courtesy clause (a general prohibition against the use of unseemly remarks). Similarly, a savings clause (a statement that the policy will be administered in compliance with applicable laws and regulations) cannot cure ambiguities in a policy. Poor taste, for example, cannot be prohibited.
If you have concerns about your company’s social media policy, discuss this with an attorney knowledgeable about this matter.