Social media is a powerful tool for connecting with customers and creating strong brands, and people who post positively about their job or workplace can boost an employer’s reputation. In the early days of social media, employers thought they could keep tight control over workers’ use of the platforms. Many companies introduced policies forbidding workers from making any negative comments online about the employer. However, with the rapid pace of change across social media platforms and employees entering the workforce who grew up with social media, a blanket disqualification of candidates or firing employees because of social media behavior could cause recruiting and retention issues.
In recent years, companies have relaxed their social media policies, many require their workers to be active on social media, and it may even be part of their job description. Studies have confirmed that 90 percent of employees are linked to at least one colleague on social media, and half have posted something about their employer or coworkers online.
The laws governing social media behavior are vague and ever-changing, just as social media itself is changing. In general, employers have the right to fire employees for any lawful reason, including what they post on social media. However, employees have several protections available to them for corrective action based on their social media activity. These include laws prohibiting discrimination, retaliation, whistleblower protection, and complaints about workplace conditions. Employers should proceed with caution as they evaluate potential corrective action tied to an employee’s social media activity.
Many employers struggle to find the balance between too strict or too lenient social media policies. A survey of social media policies of Fortune 500 companies found that the majority lacked an explanation of the corrective action consequences that would result from a violation. Most of those policies focused on safeguarding confidential information and on employees not speaking for the company, and some addressed posts about the firm or coworkers. But very few had policies regarding non-work-related posts that might be deemed offensive or damaged the company’s reputation by association. Employers need a social media policy tailored to their specific business that is not too broad that they have guidelines for every employee action.
Employers should evaluate and update their social media policies and develop a specific social media policy and plan that describes examples of behaviors that are acceptable and unacceptable. These policies should clearly describe the kinds of employee social media conduct that may be grounds for corrective action, including termination. The employer should review the policy to evaluate whether it aligns with the company’s culture and philosophy and frequently revisit and update it to accommodate changes in technology and legal and regulatory changes.
The social media policy should also communicate requirements for company-owned property such as cell phones, tablets, and laptops. An employer has the right to limit activity on devices it owns and that employees use in their ordinary course of employment. Lastly, the employer should train the employees by incorporating the information during onboarding and subsequent workshops. A social media policy and related training and workshop can help employees better understand the importance of demonstrating professionalism with their social media presence and activity, and provide guidance on what types of conduct may lead to corrective action.
Even a comprehensive social media policy cannot anticipate every instance where an employee’s personal and professional lives collide on social media. If an employer discovers a potential policy violation, they should conduct an investigation and document that misuse before confronting the employee.
An effective and comprehensive social media policy should be included in your handbook and include the following:
- Convey the employer’s legitimate business objectives in implementing the social media policy;
- Instruct employees that they should refrain from engaging in inappropriate or unacceptable conduct and clearly define those terms;
- Remind employees that social media postings are public and generally available for all the world to view;
- Specify that harassing, discriminatory, obscene, pornographic, and malicious conduct on social media is not acceptable;
- Assure employees that the intent of the social media policy is not to infringe upon employees’ Section 7 NLRA right to engage in protected activity and collective action related to their wages, hours, and working conditions;
- Ask that employees include a disclaimer that an employee’s views, positions, and opinions expressed on social media are those of the employee and not the employer;
- Prohibit employees from divulging the employer’s confidential information and trade secrets and require compliance with nondisclosure and confidentiality obligations. Define what is meant by confidential information and trade secrets;
- Advise employees to use their best judgment and exercise personal responsibility when posting on social media; and
- Require employees to obtain authorization before posting a message that is either in the employer’s name or may be attributed to the employer or before speaking to the media on the employer’s behalf.
Employers must weigh the potential damage to a company’s image and reputation against their desire to foster a supportive workforce that doesn’t micromanage employee’s actions. An updated social media policy that clearly defines policies and procedures with examples of prohibited conduct is crucial to reducing the risk of possible litigation from terminated employees and society’s negative perceptions of an employer.
Eligible Archbright members are encouraged to contact the HR Hotline with any questions or to seek specific guidance. Eligible members may also access Archbright’s sample social media policy available on the Archbright Toolkit and mobile app.