Social Media Q&As:

1.      What if I find something I don’t like on my employees’ social media accounts? Can I terminate them for it?

The answer depends on the content of the activity. Section 7 of the National Labor Relations Act (NLRA) provides workers in both union and non-union workforces the right to discuss the terms and conditions of one’s employment. Specifically, Section 7 of the NLRA protects employee activity from retaliation or interference if it is “concerted” and “for mutual aid or protection.” One modern platform for “concerted activity” the NLRB has recently begun to recognize is social media. Since social media can be used to engage in union organizing or relating to a labor dispute, discipline by the employer may be an unfair labor practice and violate the protection over “concerted activity.”

Beginning in 2011, the National Labor Relations Board (NLRB) has issued three General Counsel Memorandums to ensure consistent enforcement actions against unfair labor practices related to social media. The NLRB has not articulated a clear line between protected and unprotected activity on social media, so until they do so, employers should address each situation on a case-by-case basis and consult Counsel if they are ever in such a situation.

2.      I want to draft a Social Media Policy for my employees. What should it include?

The third General Counsel Memorandum issued by the NLRB examined seven employer policies governing the use of social media by employees. In six cases, the General Counsel’s office found some provisions of the employer’s Social Media Policy to be lawful and others to be unlawful. In the seventh case, the entire policy was found to be lawful and included in the memorandum. Looking at the policy in the seventh case, some commonly used Social Media Policy provisions the General Counsel approved included:

  1. Provisions narrowly protecting the company’s confidential information.
  2. Provisions prohibiting inappropriate postings that include qualifying language to eliminate confusion (e.g., “such as discriminatory remarks, harassment or threats of violence”).
  3. Provisions prohibiting postings with defamatory content, bullying, etc. – but noted that requiring “respectful” or “courteous” postings might be overly broad, as it could chill Section 7 activity.
  4. Provisions prohibiting employees from representing themselves as a spokesperson for the company, and requiring employees to be clear that they are not speaking on the employer’s behalf.

However, a Social Media Policy that at least includes these provisions may still not be valid. The NLRB evaluates Social Media Policies on an individual basis and will look to other factors in determining whether a policy is lawful.

3.      Can I encourage my employees to use social media to help my business presence?

There are numerous benefits to using social media to promote business presence. Employers can use social media for marketing communications, brand building, team building, intranet employee communications, professional networking, project management, research and recruiting.

At the same time, using social media also has its risks. The ease of using social media may sometimes mean that an outside party is introduced to the Enterprise by Business or Marketing teams without IT involvement, a project plan or risk assessment. In addition, employers using social media may be vulnerable to the introduction of viruses, malware and other malicious software to their IT infrastructure and targeted and sophisticated social engineering attacks. Finally, another risk associated with social media is an assumed anonymity promoting bad behavior. Therefore, it is important that companies have a social media strategy and plan to address the risks that accompany the technology. Clear, monitored and enforced user and information technology policies would also be advised.

4.      Can I use social media as a screening tool for job applicants?

As tempting as it may seem, generally speaking, it is not a good idea to use social media as a screening tool. Those who are making hiring decisions need to control the information they receive so that they are only getting information that is legal to take into account. For example, the EEOC has recently increased enforcement of employers using arrest and criminal records in hiring. Employers who run background credit reports in making hiring decisions must comply with the Fair Credit Reporting Act (FCRA).

5.      Help! Someone has posted a bad review of my company online. Can I have it removed?

No one likes a bad review, especially one that is public. However, many of the websites that allow customers to post online reviews are especially protective of the reviewers’ First Amendment rights and hesitant, if not resistant, to a business’s request to remove a review. Businesses concerned with how a bad review might affect future business might be able to best remedy a bad review through directly contacting the reviewer to find out more about what went wrong or what the reviewer did not like. If the business attempts to fix the problem or gives the reviewer a new opportunity to try out their product without no further additional costs, some reviewers may post a follow-up, more positive review which would only help the business’s reputation.