Living In A Social Media World: How Social Media Can Cause a Business to Be in Violation of the Law

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Over the past decade, social media and its numerous platforms have grown exponentially.  While social media, undoubtedly, has its perks, it has proven to have a number of pitfalls.

Social media has become a platform where people want to share every aspect of their life.  Whether in text or video form, nothing really seems to be off limits as shareable material.  Aspects of one’s job are not immune from being “post-worthy”.  But can an employer prevent an employee from posting about their job, or the business?  You may be surprised to learn that there are not many things employers can prevent employees from posting on their personal social media page regarding their employment.  This does not mean employers cannot prohibit employees from posting on their social media while they are on the clock – it becomes an issue when the context of their social media posts is being dictated by the employer, even if the post relates to the business or the employer.

Section 7 of the National Labor Relations Act (NLRA) provides a number of protections for employees with respect to their rights to communicate with one another or third parties regarding terms and conditions of their employment.  A rule, say that is found in your Employee Handbook, may be a violation of the law if it “would reasonably tend to chill employees in the exercise of their Section 7 rights”.  (Lafayette Park Hotel (1998) 326 NLRB 824, 825.)

The National Labor Relations Board (NLRB) previously found Section 7 rights were violated by the following provisions found in Employee Handbooks:

  • Employees are not to reveal non-public company information on any public site, which encompasses any topic related to the financial performance of the company; information that has not already been disclosed by authorized persons in a public forum; and personal information about another employee, such as performance, compensation or status in the company.

The NLRB found this to be unlawful because it specifically encompassed topics related to Section 7 activities and employees would reasonably construe the policy as precluding them from discussing terms and conditions of employment among themselves or with non-employees.

  • Respect all copyright and other intellectual property laws. Get permission before reusing others’ content or images.

The NLRB found this to be unlawful because it interferes with the employees’ protected right to take and post photos of, for instance, employees on a picket line, or employees working in unsafe conditions.

  • When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.

The NLRB found this to be unlawful because it requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities.

If you are an employer and have a social media provision in your employee handbook or would like help drafting one, or if you are an employee who believes your rights have been violated by your employer with respect to your social media, we can help.  Our attorneys are well-versed with these issues and are more than happy to assist.

 

By: Andrea M. Chapman, Esq.
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