Employers Craft Your Social Media Policy or Risk Disaster

Your business reputation on the internet is critical. What goes out over the internet on facebook, twitter, blogs or other social media can reflect positively or negatively on your business. You know your employees are on the internet facebooking, twitt ering and whatever else.  The list of social media is endless.  This article will focus on how you can control your employees comments about you with out running afoul of the law.


Why Control Your Employees With A  Social  Media Policy

Law firms like any business are accountable for what their employees do within their apparent authority or in the scope of their employment.  You may want to have some employees authorized to help you with you social media presence. They need to know what they can and can not post. Other employees can go rogue thinking their are no consequences to them or to you about what they say , but that can be a big mistake.


Failure to have guidelines can result in many issues:

1. Attorney client  relationships being formed where you never inteded such a thing,

2. violation of solicitation rules

3. violation of advertising rules

4. Libel

5. Copyright violations

6. revelation of confidential information of clients

7. Causing you to be sued for unlawful restrictions on employee speech

8. firing employees for things theyu have the right to do and beibg succesfully sued.

9. general miscommunication between staff and the business owner

10. Disciplinary measures are easier to take if the policy is in writing


   What is Permissable For Employees to Say about You – What is Not


The first thing you need to know, as a business employer, is all speech can not be restricted by you. Certain speech/actions of employees are protected. Therefore you can not fire an employee every time that something was said that you did not like. If you fire without knowing what you are doing you, the employer, will end up on the wrong side of a lawsuit.

In the private sector the National Labor Relations Law is what protects employees speech. The NLRB has issued guidance*. As of now they have issued two reports. The most recent being January 25th , 2012.

It was stated in the report that it  underscored two main points made in a compilation of cases:

1. Employer policies should not be so sweeping that they prohibit discussion of wages and working coditions among employees.

2. An employees comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.


The NLRA was designed to protect concerted actions of employees for their mutual aid and protection.   So if you have a policy that can be construed as restriciting conversation that was concerted activity for mutual aid and support of employment conditions.  Lets examine two recent decision by the NLRB.

Here Are Two  Cases Cited in the NLRB Guidance That Can Guide Your Social Media Policy


In The first Case The Employer’s Initial Social Media Policy Was Overbroad, But An Amended Version Was Lawful


As implemented in 2010, the Employer’s social media
policy prohibited discriminatory, defamatory, or harassing

Social Media

web entries about specific employees, work environment, or
work-related issues on social media sites. In June 2011,
the Employer replaced that policy with one that prohibited
the use of social media to post or display comments about
coworkers or supervisors or the Employer that are vulgar,
obscene, threatening, intimidating, harassing, or a
violation of the Employer’s workplace policies against
discrimination, harassment, or hostility on account of age,
race, religion, sex, ethnicity, nationality, disability, or
other protected class, status, or characteristic.
We concluded that the Employer’s initial social media
policy was unlawful under the second part of the Lutheran
Heritage test discussed above. The listed prohibitions,
which contain broad terms such as “defamatory” entries,
apply specifically to discussions about work-related
issues, and thus would arguably apply to protected

Research Policy

criticism of the Employer’s labor policies or treatment of
employees. Moreover, in this case, the Employer had
actually applied this policy to restrict its employees’
protected Facebook discussion regarding their working

The Employer’s interpretation and application
of these phrases to cover that discussion would reasonably
lead employees to conclude that protected complaints about
their working conditions were prohibited.
We found, however, that the Employer’s amended policy
was lawful. The Board has indicated that a rule’s context
provides the key to the “reasonableness” of a particular
construction. In this regard, the Board has found that a
rule forbidding “statements which are slanderous or
detrimental to the company” that appeared on a list of
prohibited conduct including “sexual or racial harassment”
and “sabotage” would not be reasonably understood to
restrict Section 7 activity. Tradesmen International, 338
NLRB 460, 460-62 (2002).
Like the rule in Tradesmen International, the
Employer’s amended social media policy would not reasonably
be construed to apply to Section 7 activity. The rule
appears in a list of plainly egregious conduct, such as
violations of the Employer’s workplace policies against
discrimination, harassment, or hostility on account of age,
race, religion, sex, ethnicity, nationality, disability, or other protected class status or characteristic.

 Section 7, is the heart of the NLRA.  It defines “protected activity.”   Stripped to its essential, it reads:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.

The Second Case Found that the Employer’s Rule Restricting Employee Contacts with Media Was Lawful

The policy could not reasonably be interpreted to prohibit
employees from speaking on their own behalf with reporters and
therefore did not violate the Act.
The Employer-a grocery store chain-included a media
relations and press interviews policy in its employee handbook.
Under this policy, the public affairs office was responsible for
all official external communications; employees were expected to
maintain confidentiality about sensitive information; and it was

Watch What you Say

Watch What You Say

imperative that one person should speak for the Employer to
deliver an appropriate message and avoid giving misinformation.
The policy also prohibited employees from using cameras in
the store or parking lot without prior approval from the
corporate office. In addition, employees were directed to
respond to all media questions by replying that they were not
authorized to comment for the Employer or did not have the
information being sought, to take the name and number of the
media organization, and to call the public affairs office.
It is well established that employees have a Section 7
right to speak to reporters about wages and other terms and
conditions of employment. See Kinder-Care Learning Centers, 299
NLRB 1171, 1172 (1990).

Therefore, while an employer has a
legitimate business interest in limiting who can make official
statements for the company, its rules cannot be so broadly
worded that employees would reasonably think that they were
prohibited from exercising their Section 7 right to speak with
reporters about working conditions.
However, a media policy that simply seeks to ensure a
consistent, controlled company message and limits employee
contact with the media only to the extent necessary to effect
that result cannot be reasonably interpreted to restrict Section
7 communications.


Language in the rule referring to “crisis
situations” and ensuring “timely and professional” response to
media inquiries further clarified that the rule was not meant to
apply to Section 7 activities.
Similarly, we concluded here that the Employer’s media
policy repeatedly stated that the purpose of the policy was to
ensure that only one person spoke for the company. Although employees were instructed

to answer all media/reporter questions
in a particular way, the required responses did not convey the
impression that employees could not speak out on their terms and
conditions of employment.

We also concluded that the Employer’s rule against allowing
cameras in the store was not unlawfully overbroad. The
prohibition of cameras followed and preceded instructions about
how to deal with news media and events drawing outside
attention. The only reasonable interpretation of this rule was
that the cameras referred to are news cameras, not employees’
own personal cameras, and therefore this part of the media
policy would not chill employees’ Section 7 conduct.


Distilling this down, the first thing you want to determine is whether the employees’ post was concerted activity. The test is whether the activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee. Individual activities that are a logical outgrowth of concerns expressed by employees collectively are considered concerted. Also an individual bringing group complaints is concerted activity.

If it is not concerted activity, then even though the post discusses dissatisfaction with working conditions or wages collectively the conduct still can be prohibited. But if the post is both concerted and made for the purpose of the employees “mutual aid and protection” it can not be prohibited.

Resources:      NLRB General Counsel Memo OM 12-31 (Jan. 24, 2102)

NLRB General Counsel Memo 11-74 (Aug 18, 2011


By Anthony Castelli

Anthony Castelli is a Ohio personal injury lawyer with an interest and active participation in social media to reach, educate and inform consumers of legal services. Click here to see his many internet properties. His primary web site is www.castellilaw.com







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