Are Your Employee Policies Keeping Up with Social Media?

Employers have for years struggled with issues of employment law brought to light by the advent of email communication and the Internet. Now employers must also be aware of legalities surrounding social media use by employees. Having appropriate policies in place is a must, and the employee handbook seems to require ever more frequent updates. Here are a few issues that employers should be aware of as we head into 2014:

1. Know what employee communications are protected. The law protects “concerted activity.” That is, employees have the right to communicate with each other regarding terms and conditions of their employment, and an employee cannot be legally disciplined for taking part in such communications. This protection extends to social media when a particular communication (such as a tweet or Facebook posting) qualifies as “concerted activity.” For example, a group of employees likely would be protected while discussing via Facebook a specific issue they are in the process of addressing with management, whereas an employee expressing an “individual gripe” might not. If you are concerned about employee social media communications that implicate your business, be sure to understand this distinction before taking any disciplinary action.
2. Employers should be wary of social media policies that may be found to be “overbroad.” As part of understanding the distinction between protected “concerted activity” and inappropriate personal gripes, employers should avoid instituting broad policies that could restrict employees’ rights to engage in protected activity. Instead, they should narrowly tailor these policies. A policy that specifically prohibits discriminatory remarks, harassment or threats of violence might be a reasonable exercise of the employer’s authority, whereas a blanket prohibition against any and all comments that might harm the employer’s reputation could run afoul of the employees’ legal rights. The employer may also want to consider including in its social media policy a disclaimer to the effect that the policy is not to be interpreted in a way that interferes with any of the employees’ legal rights.
3. Revisit existing policies. Since social media use ultimately implicates many of the same issues as traditional communication, it is not uncommon for employers to have in place policies that, while designed with traditional communication methods in mind, also apply to social media or current technology. It may be prudent for employers to spell out how such policies apply to new technology developments such as social media. For example, many employers prohibit employees from disclosing confidential company information, but it may be beneficial to spell out in the confidentiality policy or non-disclosure agreement the fact that the policy applies equally to disclosure via social media or other technological means. Similarly, if the employer already has in place a privacy policy, this should specify how it will apply to social media communications.

A 2003 graduate of the University of Wisconsin Law School, Ms. Amundsen founded Amundsen Law Firm, LLC in 2013. She primarily counsels small businesses and individuals in the areas of intellectual property, business and contractual issues and estate planning and was recently selected for inclusion in the 2013 SuperLawyers Rising Stars list. Ms. Amundsen is a member of the American Bar Association, the State Bar of Wisconsin, the Dane County Bar Association and Wisconsin Women Entrepreneurs. Follow Ms. Amundsen on Twitter @jlamundsen.