Protecting Yourself from Protected Language: Email and Social Media Policies

Protecting Yourself from Protected Language: Email and Social Media Policies

In today’s highly technological society, it probably seems a simple and natural decision for employers to include clauses about social media and email use in employee contracts or handbooks; however, this must be done very carefully in order to prevent possible violations of the National Labor Relations Act and the consequences that may follow.

Protected concerted activity

The National Labor Relations Act provides that non-supervisory employees have the right to protected activity for the purpose of mutual aid and protection whether on- or offline. Employees are afforded the right to engage in “concerted activity,” including discussing the terms and conditions of their employment—and even criticizing their employers—with co-workers and outsiders.

Potentially problematic language

Before firing any employee because they flouted a digital communications policy, ask yourself if the prohibited activity could pass as concerted protected activity or federally protected “group gripe;” if so, you might find that termination invokes repercussions from the NLRA. In order to prevent such backlash, reevaluate policies that include any language an employee might reasonably assume prohibits protected speech, such as:

* Prohibiting employees from discussing non-public information, confidential information, and legal matters of the employer (without any further clarification of the meaning of these terms)
* Prohibiting employees from harming the image and integrity of the company, making statements which are detrimental to the employer, disparaging and prohibiting discussion of dissatisfaction
* Prohibiting employees from making posts that are inaccurate or misleading; making offensive, demeaning or inappropriate remarks; instructing employees to use a friendly tone and not engage in inflammatory discussions
* Requiring employees to secure permission prior to posting photos, music, videos and the quotes and personal information of others
* Discouraging employees from “friending” coworkers
* Prohibiting online discussion with government agencies concerning the company
* Requiring employees to solve work problems in the workplace rather than posting about such problems online
* Threatening employees with discipline or criminal prosecution for failing to report violations of social media policy

Ways to protect your company

While with some of those forms of speech it may seem obvious that they cannot be prohibited, other speech acts may seem less intuitively protected. Here are some ways you could reword your policies in order to protect you and your company.

* Prohibit vulgar or obscene language, but not disparaging or derogatory language, about the company or its employees. Banning the latter might imply that employees can’t complain about the terms and conditions of their employment (a protected topic).
* Include specific examples of prohibited conduct in a policy, so employees will be less likely to construe the policy as prohibiting or limiting concerted activity.
* Avoid vague terms within policies, because any ambiguities will often be construed against the employer. An employee should not have to consult a dictionary to understand an employer’s rules.
* Consider including a statement that the policy does not limit employees from lawfully discussing their terms and conditions of their employment. If this is included it will be difficult for an employee to argue that they thought they weren’t allowed.

As you can see, writing email and social media guidelines to both protect your company and respect your employees’ rights is a difficult line to walk. A carefully crafted and compliant digital communications policy is vitally important because it gets rid of any ambiguities or liabilities you might otherwise have. For more assistance on creating effective employee handbooks and keeping up to date in the ever-changing field of labor law, check out Paycor’s HR Support Center.


This content is provided for educational purposes only and should not be considered legal advice.

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