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#ProtectedSpeech: Social Media in the Workplace

Aug 9, 2016

Social media is pervasive, inside and outside the workplace. With a few clicks, “confidential” business information can spread to clients, business prospects, and even news outlets. Should you be concerned? Consider these two scenarios:

  1. Your employees are tweeting and posting with reckless abandon. There are complaints about coworkers, management, or even specific clients or business practices. Can you stop this?
  2. You, as an employee, post a comment out of frustration or annoyance with your boss. You thought it wouldn’t get back to management, but with screen shots and “shares,” now you are in hot water. Are your comments safe?

All employees have the right to discuss wages, hours, and other terms and conditions of employment. Workplace policies cannot restrict these rights; even well-intentioned rules that end up inhibiting collective employee actions (whether or not part of a union) are not legally permitted.

What to do? Policies can still be effective to regulate employee conduct, so long as employees are free to voice concerns about their working conditions. To ensure legal compliance, update handbooks and policies to reflect recent guidance issued by the National Labor Relations Board. Provisions must be narrowly tailored to impose professionalism and responsibility on employees without causing them to misconstrue employer rules as prohibiting concerted activity.

Not all employee comments are protected. Specifically, the law protects comments about the terms and conditions of employment. Opinions and statements unrelated to the workplace are not protected by law. Therefore, in certain instances, disciplinary action may be taken against an employee who has posted photographs or commentary that reflect poorly on the character of the employee or the company. For example, distasteful photographs, unprofessional language, or questionable conduct may violate workplace policies if unrelated to protected workplace communications.

Policies regarding employee discipline, confidentiality, computer and cell phone use, and social media are all integral to a modern, successful approach to monitoring social media conduct. Please contact us at 585.546.2500 for assistance with updating your handbook or workplace rules.