Chances are good that many of your company's employees post personal content on the Internet. Perhaps they have their own Facebook or Instagram page, tweet their observations throughout the day, keep a blog, post comments on other websites, upload photos, or chat with others online.
Many employers are understandably wary about trying to crack down on personal posts. Blogs and social media provide a creative outlet, a way for friends to keep in touch, a place to share opinions and be part of a larger community of pug owners, single parents, or recycling enthusiasts. They are, in a word, personal, and few employers really want to read employees' personal writings or be known as a company that stifles personal expression. (For more on the ins and outs of employee privacy, check out Nolo's Privacy in the Workplace FAQ.)
Unfortunately, however, not all employees like their jobs—and even those who do may not successfully navigate the line between appropriate and inappropriate online content. An employee blog or post that reveals company trade secrets, slams a company product, or threatens or harasses other employees can present an unmitigated disaster for a company. Even posts that have nothing to do with work can create major trouble if they express extreme or unpopular views, racist comments, or violent fantasies, for example.
A quick look through news reports shows that employees have used social networking sites and blogs to post:
As an employer, you have the right to control what employees do with the time and equipment you pay for, generally speaking. However, when employees use their own computers to express their own opinions on their own time, an employer's legal rights are more limited. Read on to learn what you can and can't do in regulating employee posts and what you should cover in a posting policy.
A host of laws protect an employee's right to speak online—at least about certain topics.
Concerted activity protections. The National Labor Relations Act (NLRA) and similar state laws protect employees' rights to engage in protected concerted activity: joining together to discuss and try to improve the terms and conditions of their employment. Employees have this right, whether they are part of a union or not. Under these laws, disciplining or firing an employee for posting about low wages, poor benefits, a difficult manager, or long work hours could be a violation of the NLRA. In general, protected concerted activity must involve at least two employees; personal gripes are not protected. So an employee who vents about a denied promotion or pay raise might not be protected. However, if that same employee asks coworkers to comment on the company’s practice of paying low wages or coworkers chime in about their dissatisfaction with their wages, that would probably qualify as protected activity.
Off-duty conduct laws. A number of states have laws that prohibit employers from disciplining or firing employees for legal activities they pursue on their own time. Some of these laws apply only to the legal consumption of certain products, such as tobacco or alcohol. However, others are much broader and protect any legal conduct that happens away from work, including employee blogging or posting.
Protections for political views. A handful of states protect employees from discrimination based on their political views or affiliation. In these states, disciplining an employee for a political post (for example, one that endorses a candidate or cause) could be illegal.
Protections for "whistle-bloggers." An employee who raises concerns about safety hazards or illegal activity at work may be protected as a whistle-blower (called a "whistle-blogger" if the concerns are raised in a blog).
Prohibitions on retaliation. Many employment laws protect employees from retaliation for claiming that their rights have been violated. If an employee complains online about workplace discrimination, harassment, violation of the Family and Medical Leave Act, wage and hour violations, or other legal transgressions, that employee may be protected from disciplinary action.
As you can see, several laws might provide protection for employee social media posts. Because this is a tricky area of law, you should consult with a lawyer before firing an employee over a personal social media post.
Online posts are easy to dash off and virtually impossible to retract once published. When employees aren't at work, they probably aren't thinking of the potential consequences of making fun of a coworker's accent or revealing little-known facts about a client. Most likely, they're simply trying to be funny and attract readers.
So what can your company do to curb inappropriate employee posts without running afoul of the law or becoming known as Corporate Big Brother? Adopt a carefully crafted social media policy letting employees know that their personal pages, blogs, and posts could get them in trouble at work, and explain the types of content that could create problems.
A good online posting policy should explain that, while the company appreciates that employees want to express themselves in the virtual world, problems may arise if their personal posts appear to be associated with the company or violate the rights of the company or other employees. Here are some topics you should cover: