Is Your Social Media Policy Legal?
John McTigue has written a great article about a case first published in the New York Times “in which an employee was terminated for criticizing her supervisor on her Facebook page”. As he comments, most of us would think here’s yet another example of a foolish employee making silly comments about their employee in a public forum.
But is it? Or is Facebook “the equivalent of getting together around the water cooler” to “talk about working conditions”? Which, in the USA, may be perfectly legal under the National Labor Relations Act.
This case perfectly highlights the questions as to how much, and what, an employer can (as opposed to should) control in terms of their employees activities on social media.
Some of the issues that need to be considered include:
- What is “reasonable” in terms of what you can expect of your employees involvement in social media?
- Where is the boundary between public and private use of social media – ie can an employee talk about their employer on their private social media sites and can an employer restrict this? This is a really tricky one as the boundaries between public and private are increasingly blurred.
- What is “reasonable” in terms of private social media use at work – employers often ask us to write restrictive policies with regard to social media use during work hours.
- Content – what can employers restrict in terms of employees content on social media? Obviously anything illegal is easy but what about type of language or the definition of “confidential information”?
- Conflict of interest – how do you deal with employees writing their own blogs or setting up their own networking forums? Can an employer be restrictive about this?
As well as the arguments about “what is reasonable” in these instances, employers also need to consider “what is legal”?
To quote some great advice from John McTigue, it is imperative that employers / companies seek legal counsel “before you develop, circulate and enforce your social media policy”.
From → social media policies