Employer Social Media Policies: What Provisions Are Allowed

     The employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor (“DOL”) compliance, as well as guidance on preventing and responding to discrimination and harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). Our employment attorneys also regularly update clients on news, events, and changes in law as it relates to labor and employment issues that may impact our clients.

     Social media is a major issue facing both the employer and the employee. How the employer can regulate and monitor its’ employees use of social media can affect the employment relationship. In fact, most employee handbooks now contain a social media policy regulating how employees can use social media during work hours. One important question concerning an employer’s social media policies is: What provisions are allowed in an employer’s social media policy, and what can an employer regulate?

What provisions can be included in an employer’s social media policy?

     An employer may limit the amount of time an employee can spend on their social media accounts during work hours, however an employer cannot completely prohibit an employee’s use of social media. Employees must be allowed to access social media during breaks or nonworking hours. Oh. Employ. Prac. L. § 10:10 National Labor Relations Act issues regarding employer policies. Any social media policy cannot be a blanket prohibition against the use of social media.

     The trickier issue facing social media policies is whether the employer can limit what the employee posts to social media. A report issued by the National Labor Relations Board stated that an “employee’s social media posts, like those made on Facebook, Twitter, etc., that are related to the terms and conditions of employment are protected, meaning employers are prohibited from taking adverse actions against employees who take to social media to vent their workplace issues.” That report also stated that employers cannot issue policies that chill an employee from communicating about the terms or conditions of employment through social media.

     Overall, the employer cannot restrict or prohibit the content of the social media posts of their employees through a social media policy. But, if the employee posts negative or disparaging content about the employer that is factually inaccurate, the employer can terminate the employee or seek other legal remedies. The National Labor Relations Act states that an employee who posts malicious untrue statements, made with the knowledge that the statements are false, loses the protection and the employee may be terminated.

     Social media policies can limit the employee’s usage of social media but cannot prohibit all social media use. Generally, an employer’s social media policy cannot restrict the content of an employee’s social media post. General posts about the work environment and the employer, along with true statements made about the employer, are allowed and cannot be prohibited.

Please click here for more detail regarding the National Labor Relations Board report.

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     The Nardone Limited employment attorneys handle a full spectrum of employment law issues, including business disputes and litigation, drafting employment and restrictive covenants, and consultation on employment law issues. If you need advice or representation in an employment dispute before the EEOC, the OCRC, or regarding potential labor and employment litigation, feel free to contact Nardone Limited.