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Employers Must Exercise Caution in Developing Social Media Policies Aimed at Preventing Criticism of their Companies

With the recent widespread use of social media sites such as Facebook and Twitter, it is not surprising that most employees have a social media account. In response, many employers have implemented policies which expressly limit what activities employees are allowed to engage in on social media. For example, most employers have social media policies that prohibit employees from criticizing or disparaging them and/or their policies and procedures. However, employers implementing social media policies that prohibit employees from posting criticisms of their employers, should exercise caution and be mindful of the free speech protections afforded by the First Amendment. The National Labor Relations Board (“NLRB”), which governs most private sector employers, has issued a number of recent decisions, in which it has held that employers may not adopt broad social media policies prohibiting employees from engaging in concerted activity. Although concerted activity generally refers to actions taken by employees in connection with unionization or collective bargaining, it may also include instances when non-union employees collectively complain about the terms and conditions of their employment. In recent decisions, the NLRB has acknowledged this definition of concerted activity and has cautioned employers from enacting policies which prohibit employees from criticizing their working conditions (without limitation), particularly if the purpose of the speech is to improve such working conditions.

Practice Pointer: Employers should ensure that the prohibitions contained in their social media policies are not so broad as to discourage employees from working together to improve the terms and conditions of their employment. For instance, while a policy may prohibit employees from posting discriminatory, malicious, or defamatory remarks, or threats of violence or engaging in harassing conduct, the policy should not prohibit—without limitation—postings that contain general complaints or criticisms concerning the employer.

Chaired by Partner Brett J. Schneider, WSH's Labor and Employment Law Group routinely provides counsel to employers to prevent claims from arising.  Attorneys in the Group regularly draft employee handbooks, manuals, policies and procedures governing a wide array of workplace issues, and conduct training seminars to ensure employees understand policies and procedures.  The Group provides advice on hiring, discipline and termination, harassment and discrimination complaints, employee compensation and benefit issues and compliance with Federal, State and local laws. 

Categories: Labor and Employment
Tags: Employment AgreementsBrett J. SchneiderAlison F. SmithEmployee MisconductFort Lauderdale Employment Law AttorneysMiami Employment Law AttorneysSouth Florida Employment Law AttorneysFlorida Employment AttorneysFort Lauderdale Employment LawyerFort Lauderdale Employment LawyerMiami Employment AttorneyMiami Employment AttorneySouth Florida Employment Lawyers
Author(s): Alison F. Smith