Technology: Not too narrow, not too broad. Social media policies must be “just right”

Legal departments should take care to determine if provisions within social media policies comply with the NLRB’s recent Costco decisions

Nearly everyone uses some form of social media these days, and your employees are no exception. They are tweeting, friending and linking-in all the way from the stockroom to the boardroom, and in every office or cubicle in between. It therefore follows that your company should institute a social media policy to govern the appropriate scope of social media use amongst employees.

Every company should have a social media policy designed to protect the company from improper social media use by placing employees on notice of what they can and can’t do when communicating on the Internet. Ideally, the policy should provide specific guidelines that are designed to protect the company’s reputation, business relationships, trade secrets and intellectual property, as well as avoid liability associated with employees that post harassing, confidential, and/or other inappropriate material concerning other employees. An effective policy will provide employers with peace of mind that it has officially communicated what is a punishable or terminable offense in the event an employee misuses social media in violation of the policy. At the same time, employees will a have a clear understanding of what they can and can’t do online, and therefore can use social media without fear of repercussion so long as they follow the guidelines set forth in the policy. Sounds simple, right?

The NLRB explained, “by its terms, the broad prohibition against making statements that ‘damage the company, defame any individual or damage any person’s reputation’ clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” Since protected communications were not excluded from Costco’s broad policy, the NLRB determined that employees would reasonably conclude that the policy required them to refrain from engaging in protected communications.

While the NLRB in the Costco decision did not go so far as to provide guidance as to how to craft social media policies that will survive NLRB scrutiny, it reinforces a critical component to any social media policy: Be specific. Broad restrictions on sharing confidential information about the company or co-workers without defining the nature and scope of confidential information could be problematic. Instead, policies should specifically prohibit the disclosure of personal information, such as social security numbers and protected health information. Also, policies prohibiting employees from engaging in controversial discussions or airing complaints online may not pass muster. Alternatively, a policy could prohibit employees from engaging in sexually or racially harassing comments. These distinctions are critical to crafting a policy that can protect the company without violating protected concerted activity.

Contributing Author

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Heather Melick

Heather Melick is of counsel with Luper Neidenthal & Logan in Columbus, Ohio. She focuses on the areas of complex commercial litigation, appellate work, military...

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Contributing Author

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Ethan Wall

Ethan Wall is a social media law attorney, author, professor, and keynote speaker at Social Media Law and Order in Miami. Ethan co-authored “

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