Man holding sign that reads "Social Media"

Developing a Social Media Policy

by Kimberly Horton, on January 08, 2019
In this day and age most people have at least one social media account. In fact, in a report published by GlobalWebIndex, the average person now has 7.6 social media accounts, and 98% have at least one social network account.
Statistics shows that Americans spend at least 2 hours per day using their social media accounts.  Who would like to wager a portion of that time is spent monitoring social media accounts during the work day?  And, as an employer, what can you do about the content that your employees post online?  The answer to those questions may seem disheartening to some.  While employers can have say-so in the way employees use their time during the workday, they have much less authority over employees’ social media usage during non-work hours.
If an employee, Sally, takes to social media on her own time and makes comments about how her boss is unfair, there’s not a lot that can be done by her employer.  Sally could even go to the extreme of calling her boss a scumbag or a more colorful expletive, still her employer would have little recourse for corrective action.
Employers might contend that negative comments posted on social media have an adverse effect on the entire organization and therefore, should be actionable. The National Labor Relations Board (NLRB) would disagree.  In fact, they have already declared that restrictions on employees’ ability to engage in collective action are illegal.  This means that if Sally’s social media post garners several “likes” or even additional comments from her co-workers, she is within her rights.
Recent rulings by the NLRB have stated that employees have a right to discuss work conditions freely and without fear of retribution – whether the discussion takes place in the office or on Facebook. The  rulings generally send a message to companies that it is illegal to adopt broad social media policies that ban “disrespectful” comments or posts criticizing an employer.  They argue that broad social media policies, like this one, would discourage employees from exercising their right to communicate with the goal of improving wages, work conditions, or benefits.
By the same token, the NLRB has rejected several large companies’ social media policies.  Blanket policy statements that claim employees are prohibited from posting “confidential” information are unlawful.  Instead of a single broad statement about confidential information, it is best to define what confidential means, such as trade secrets, product introduction dates, or private health details.  The NLRB would argue that an overly broad confidentiality statement is unlawful because it might lead an employee to believe they are not permitted to discuss their pay or the nature of their employment.
Does this mean that companies cannot discipline employees for their social media activity at all?  Absolutely not!  Let’s say Sally decides to post discriminatory comments, threatens an act of violence or sexually harasses a co-worker online.  What if Sally posts proprietary information about an important customer’s bank account balance or transaction history?  What can her employer do about Sally’s behavior?  It’s important to make sure that any disciplinary action taken against Sally doesn’t violate her rights under the National Labor Relations Act (NLRA); however, it would still be considered unlawful for an employee to engage in discriminatory or harassing behavior, whether it be inside the work environment, at an off-site company event, or online.  In addition, if defined as “confidential” information, it could be a policy violation for Sally to post information about a customer’s account.
It’s important to recognize the fine line between concerted activity and inappropriate or illegal online behavior.  Some things companies can do:

define what constitutes inappropriate or unacceptable online conduct. Keep in mind that overly broad definitions of that behavior can be a violation of the NLRA.  There should be a legitimate business objective in mind when defining acceptable usage.

Let employees know that harassing, discriminatory, obscene, pornographic, or malicious conduct on social media is not acceptable.

Define what is meant by “confidential information” and “trade secrets”.  Require compliance with nondisclosure and confidentiality obligations.

Advise employees to use their best judgment and exercise responsibility when posting on social media.  Remind them that they should never assume that anything they post won’t remain permanent.
Developing a written policy is only the first step toward having an effective social media presence.  Continuous training and education regarding the policy content and the relatedness to other company policies are critical to ensure success.
If you have additional questions on the development and training of a social media policy and its compliance with the NLRB, please contact LandrumHR Human Resource Department at
Kimberly Horton

Kim Horton has nearly 20 years of Human Resources experience in corporate, financial, manufacturing, customer service and consulting environments, collectively. She currently serves as an HR Manager for LandrumHR. Her experience in the field has been acquired through focus on employee relations, training and development, team building, employment law compliance, strategic planning, high-level talent assessment and succession planning, employment law compliance, and employee compensation and benefits. Kim holds a Master of Arts degree in Industrial/Organizational Psychology. During her course of study, her primary research and thesis focused on procedural and distributive justice in both formal and informal mentoring relationships and perceptions of fairness. Her work was selected for presentation during a poster session at the national Society for Industrial/Organizational Psychology (SIOP) conference. She has also taught at the college level for both graduate and undergraduate courses in Industrial/Organizational Psychology. Kim is a member of the national chapter of Society for Human Resources Management.

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