Regulating employee behavior on social media: The limits of corporate policy

Recent NLRB decisions underscore that employers must be careful not to overreach in seeking to curb employee social media activity

Employers have been quick to recognize that there are significant and varied risks involved when employees talk about employment-related issues on social media. Many of these risks are common to other forms of communication and have traditionally been subject to corporate policies. For example, policies warn employees about the dangers of exposing confidential information on the Internet or of purporting to represent the company when they have no authority to do so. I previously discussed the fundamentals of sound corporate social media policies. However, social media policies venture into uncertain territory when they try to control more difficult-to-define behavior that is considered inappropriate or undesirable, including, for example, disparagement of management or colleagues.

Recent action by the National Labor Relations Board (NLRB) illustrates that an employer’s ability to use such broad policies against employees who complain about work is limited. According to the NLRB, blanket restrictions that prohibit employees from talking about work are illegal. The agency has ordered large corporate employers to rewrite social media policies that go too far in restricting employee speech. It has also ordered that employers reinstate employees who were fired based on social media postings.

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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