Why Organizations Need a Social Media Policy
Social media has fundamentally changed how employees communicate, both personally and professionally. Without a clear policy, organizations face risks including unauthorized disclosure of confidential information, damage to the company's reputation, harassment and bullying through online channels, blurred boundaries between personal and professional expression, and potential legal liability. A well-crafted social media policy provides guidance to employees while protecting organizational interests and respecting individual rights.
Legal Considerations
NLRA Protections
One of the most important legal considerations in social media policy development is the National Labor Relations Act. The NLRB has consistently held that employees have the right to discuss wages, working conditions, and other terms of employment on social media, even if the comments are critical of the employer. Overly broad social media policies that could be interpreted as restricting these protected activities have been struck down by the NLRB. When drafting your policy, ensure that it does not prohibit employees from discussing their working conditions with coworkers, restrict employees from making negative comments about the company, require employees to include disclaimers with every personal post, or broadly ban "disparaging" or "negative" remarks about the organization.
State Social Media Privacy Laws
A growing number of states have enacted laws that prohibit employers from requiring or requesting access to employees' personal social media accounts. These laws generally prevent employers from asking employees for their social media passwords, requiring employees to log into personal accounts in the presence of the employer, adding the employer or a representative as a connection on personal accounts, and taking adverse action against employees who refuse to grant access.
Key Components of a Social Media Policy
Scope and Purpose
Begin by defining the scope of the policy. Clarify which platforms are covered (Facebook, Twitter, LinkedIn, Instagram, TikTok, blogs, forums, etc.), whether the policy applies to personal use, professional use, or both, and the purpose of the policy (protecting confidential information, maintaining professional standards, clarifying expectations).
Confidentiality and Proprietary Information
Employees should be reminded that sharing confidential business information, trade secrets, client data, or proprietary material on social media is prohibited. Provide specific examples of what constitutes confidential information to eliminate ambiguity.
Harassment and Discrimination
State clearly that the organization's harassment and discrimination policies extend to social media. Conduct that would violate these policies in person is equally unacceptable online. Employees should be warned that social media posts targeting coworkers based on protected characteristics can constitute harassment.
Personal Use During Work Hours
Address whether personal social media use is permitted during work hours, breaks, or on company equipment. Be reasonable in your expectations, as complete prohibition is difficult to enforce and may negatively impact morale.
Representing the Organization
Employees who post about the organization or its products and services should be reminded to identify themselves as employees, express opinions as their own rather than the company's, and comply with Federal Trade Commission (FTC) disclosure requirements regarding endorsements and testimonials.
Implementation and Training
A social media policy is only effective if employees understand it. Roll out the policy through multiple channels: email, staff meetings, the employee handbook, and dedicated training sessions. Provide real-world examples to illustrate acceptable and unacceptable social media behavior. Train managers on how to identify potential policy violations and when to escalate concerns to HR. Update the policy regularly to reflect new platforms, changing laws, and evolving organizational needs.
Enforcement
Consistent enforcement is essential. When potential violations are identified, investigate the facts before taking action. Consider the context of the post, whether the employee intended the comment to be public, and whether the content constitutes protected concerted activity under the NLRA. Apply progressive discipline consistently, and document all investigations and decisions. Consult with legal counsel for complex situations.
Social Media Screening in Hiring
Many employers review candidates' social media profiles during the hiring process. While this practice is generally legal, it carries risks. Viewing information about a candidate's protected characteristics (race, religion, disability, pregnancy) could lead to claims of discrimination. To mitigate this risk, establish a consistent process, have someone other than the hiring manager conduct the review, document the business-related criteria being evaluated, and avoid accessing private accounts.
SHRM Exam Focus
The SHRM exam may test your understanding of the intersection between social media policies and the NLRA, state privacy laws affecting social media, the components of an effective social media policy, and the risks associated with social media screening in hiring. Pay particular attention to NLRB rulings on overly broad social media policies and the distinction between protected concerted activity and unprotected individual complaints.