ACtion Magazine - June 2017 - 10

Social media policy limitations
Keith Leonard,
Esquire

E

ven the President of the United States
uses social media to broadcast his views.
Yet, can an employer adopt a policy that
prohibits or limits the use of social media by its
employees? Though an employer may be able
to restrict or limit its employees' use of social
media on company devices or during working hours, there may be state or local laws that
prohibit employment policies, which restrict
or substantially limit employees' legal off-duty
conduct. Such regulations often fall under the
broad category of so-called lifestyle discrimination laws and are intended to protect employees
against employers who impose certain lifestyle
requirements on their workforce, such as only
hiring non-smokers. The discrimination by the
employer is based on treating an applicant or
employee differently because of his life choices.
Not all states have such laws in effect and there
is no uniformity in such mandates in terms of
employer prohibited actions; termination of employment only, refusal to hire, or disciplinary action. Some of these laws do permit an employer
to discriminate on a protected category if: (i) it is
related to a bona fide occupational requirement,
(ii) it is necessary to avoid a conflict of interest
with the employer, (iii) use of the product affects
an employee's ability to perform his job duties
and/or (iv) the primary purpose of the organization is to discourage the use of the product at
issue. Before adopting a social media policy an
employer should make sure to narrowly tailor
the policy to the company's legitimate business
interests.

What about an employee who wants to
"vent his spleen" about his employer or just
criticize the working conditions of his job on
social media? Can doing so result in him being
fired? Generally, such social media activity will
not be sufficient to permit termination of the employee's job.
The National Labor Relations Act (NLRA)
does not apply to federal, state, or local government, employers who hire only agricultural
workers, and employers subject to the Railway
Labor Act, but the NLRA does cover most employees in the private sector. It is an unfair labor
practice under Section 8(a)(1) of the NLRA for
an employer to interfere with, restrain or coerce
employees in the exercise of their rights to selforganize, form, join, or assist labor organizations, bargain collectively, or engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection. In
considering an employee's rights to be free from
such interference, courts have balanced those
rights of the employee against an employer's
interest in preventing disparagement of his
products or services and protecting the reputation of his business. An employee's rights to the
foregoing protections might be lost if his public
communications are sufficiently disloyal or defamatory to the employer.
It is not presently settled concerning the parameters of an employer's social policies and or
an employee's rights to engage in social media
criticism about his employer. The National Labor Relations Board (NLRB) has ruled the fol-

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10

ACTION * June 2017

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lowing social media policy provisions adopted
by employers are unlawful: (1) prohibiting employee statements that "damage the company,
defame any individual or damage any person's
reputation"; (2) prohibiting employees from
making "disparaging or defamatory comments
about [employer], its employees, officers, directors, vendors, customers, partners, affiliates, or
... their products/services"; (3) prohibiting "disrespectful" conduct and language that might injure the "image or reputation" of the employer;
(4) prohibiting employees from posting pictures
depicting the employer in any way, including a
picture of the employee in a company uniform
or exhibiting the corporate logo; (5) prohibiting
employees from making disparaging comments
about the company or the employee's supervisors, co-workers, or competitors; (6) prohibiting employees' use of language or action that is
"inappropriate," of a general offensive nature,
rude or discourteous to a client or co-worker; (7)
prohibiting employees from revealing personal
information regarding coworkers, clients, partners or customers without consent; (8) prohibiting employees from identifying themselves as
the employer's employee; and (9) limiting employee discussions of terms and conditions of
employment to those conversations conducted
in an "appropriate" manner. On the other hand,
an employee's public statement may be found
disloyal where it is criticism that is disconnected
from any ongoing labor dispute.
Social media continues to be a powerful
soapbox for both employers and employees.
However, any use of it or restriction of its use
should be carefully considered by employers
and employees as well. ❆
Remember that laws are constantly
changing and are often not uniform
throughout the United States. Do
not place unqualified reliance on the
information in this article. Always
contact legal counsel for detailed
advice.
If you have a particular issue, law
or problem you would like to see
addressed in a future column, please
contact me at KLeonard@LeonardSciolla.com, or Leonard, Sciolla,
Hutchison, Leonard & Tinari, LLP,
215-567-1530.
http://www.dealerautomotive.com
Table of Contents for the Digital Edition of ACtion Magazine - June 2017
