In our Social Media on the Job series, we’ve discussed the prevalent use of social media by employers, social media’s effect on hiring decisions, and employer access to your social media account.

In this article, we’re going to take a look at some of the issues that arise when employers try to restrict employees’ social media activity.

As mentioned in a previous post, employers have legitimate interests that warrant certain protective measures. The unauthorized disclosure of confidential information is one such concern. It’s also understandable that businesses want to prevent the disparagement of their brand. Also, no one would dispute that employers have an obligation to make sure employees are not subject to unlawful harassment by co-workers.

However, problems arise when employers, intending to further these reasonable objectives, implement broad policies directed at employees’ social media activity.

Social Media is more than just vacation pictures.

People use social media to share ideas, jokes, gripes, news, events, images, etc. on just about any topic with family, friends, co-workers and the general public. Most people engage in this activity on a personal level, on their own time, in a completely harmless manner.

Sometimes, however, social media posts cross over from the realm of the personal into that of the public; from the humorous to the poignant; from the private to the political; and from the meaningless to the pro-active.

So when those lines are crossed – when employees use social media to discuss work issues that effect not just themselves, but also co-workers, employees everywhere or the general public – can employers put the kibosh on that activity?

Government employees have the benefit of the free speech provisions of the First Amendment. So any attempt by government employers to restrict social media activity is subject to heightened scrutiny particularly where a public employee’s statements are a matter of public concern.

Federal Law protects Social Media posts.

But for the rest of the non-governmental workforce, the First Amendment offers no protection to social media gripes. However, not all is lost. The National Labor Relations Board (NLRB) – a federal agency that protects private sectors employees’ right to unionize – recently issued a slew of decision striking down employer policies that prohibit various forms of social media discussions.

In those cases the NLRB found the policies were overbroad because they could discourage employees from engaging in concerted activity for mutual aid or protection – conduct that is expressly protected by federal law. In other words, employers cannot restrict employees from discussing work-related matters, in social media or elsewhere, where that discussion is intended to better employees’ wages, benefits or other terms & conditions of employment.

For example, in one case the Board held that GM’s policy prohibiting online comments that were “offensive, demeaning, abusive or inappropriate” too broad because it could include posts that criticize the employer’s labor policies or treatment of its employees – activity protected by the law.

In a similar case, the Board rejected as overbroad Costco’s prohibition against employees’ postings which might “damage the company” or “any person’s reputation.”

On the other hand, the Board approved of Walmart’s policy prohibiting “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”

Whether your social media posts are protected concerted activity depends on several factors and each situation depends on its facts. First, the post must obviously concern working conditions. The trickier question asks whether a post involves “concerted” activity.

Generally, concerted activity is for the benefit of more than just one person. For instance, where two or more employees act together to improve pay or working conditions; or where one employee acts on behalf of others.

On the other hand, a social media post would generally not be considered concerted activity if it’s an individual employee’s personal gripe.

Also, a social media post that is reckless or malicious – for example those that incite or threaten sabotage or violence, spread lies about a product or person, reveal trade secrets or private health information – may cause concerted activity to lose its protection.

As the law attempts to keep up with the rapid pace of changing technology, new issues will arise, challenges will surface, and policies intended to adapt will be implemented.

Have you had any experience with your job and social media? Please share your comments or questions below.

Ralph A. Somma is a Long Island, NY employment lawyer.

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