• Employers must use caution, since some social media activity can be protected activity under the NLRA.
• A strong social media policy incorporates other company policies.

A well-crafted social media policy provides clear guidelines for employees regarding the use of social media platforms. Its aim should be to protect the company’s reputation while maintaining compliance with applicable laws and regulations. 

The National Labor Relations Board (NLRB) has found that employee activity on social media can be protected activity under the National Labor Relations Act (NLRA). The NLRB has often found that policies which restrict employee use of social media are overly broad and constitute an unfair labor practice by chilling employees’ rights to discuss wages, hours, and working conditions.

Employers may not instruct employees to refrain from discussing any company matters or the terms and conditions of their employment on social media. While employers can expect employees to refrain from simply badmouthing the company online, a policy must leave room for employees to engage in protected activity.

A social media policy should not stand alone. Rather, incorporate other company policies such as confidentiality, trade secret and proprietary information, discrimination, harassment, data-security, and ethics policies so employees understand that online activity may be a workplace violation.

A social media policy might simply clarify that the employment relationship continues to exist when employees are away from work, and that policies on discrimination, harassment, threats of violence, or other conduct remain enforceable when employees are not on the premises. This allows the employer to address conduct violations and protect other employees, but may avoid the potential pitfalls of imposing limitations that are later deemed to be overly broad.

Avoid blanket bans on “negative” or “disparaging” posts; instead, focus on confidentiality and accuracy. Make clear distinctions between personal opinions and official company statements and include disclaimers encouraging employees to note that their views are their own. Also note that employees must not use the firm’s logo, branding, or proprietary materials in personal posts without prior authorization.

Specify consequences for posts that reveal proprietary information, threaten violence, or unlawfully harass coworkers.

Consult with an employment attorney to ensure the social media policy complies with federal, state, and local laws regarding free speech and employee rights. Review the policy regularly.