Workplace Social Media and Email Policies – What Employers Should Know

November 3, 2016

People take to social media to do a lot of things. They share baby pictures. They talk about sports or politics or post photos with their spouses. And sometimes, they post about their place of employment. In addition, out of convenience, people oftentimes use their work email for personal use.

It is these last items that concern employers. After all, employers have a brand, image, customer relationships, and intellectual property to protect. What employers may be surprised to learn is that they are subject to decisions by the National Labor Relations Board (NLRB), whether or not their employees are unionized. 

Do you need help drafting a compliant social media, internet, standards of conduct, or corporate email policy for your company? Call CJ at 410.986.0846.

The NLRB considers social media spaces such as Facebook, Twitter, Instagram, etc., and even company email, akin to the workplace water cooler.  What employees (union and non-union alike) share there, and how and when they share it, may be protected.

Section 7 of the National Labor Relations Act (NLRA) outlines the rights of employees to unionize, to engage in other concerted activity to advance their interests as employees, and to refrain from such activity.

Section 8(a)(1) of the NLRA makes it unlawful for employers “to interfere with, restrain, or coerce employees in the exercise of their rights.”

In terms of the digital realm, the NLRB considers social media a common and acceptable platform for workers to communicate with one another about wages, benefits, supervisors, or working conditions. Furthermore, according to the NLRB an employee has a right to use his or her work email for such communications during non-working time.

So what does this actually mean for employers?

It means that some of the content employees’ posts on social media, and some of their use of company email, is protected by law — even if employers don’t like the messages.

In the case of Triple Play Sports Bar, the NLRB ruled that the employer violated

the NLRA when it fired two employees who used Facebook to complain about their employer failing to withhold the proper amount of income tax, resulting in the employees owing for taxes. 

In the case of Purple Communications, the NLRB decided that, absent special circumstances, an employer could not prohibit the use of company email for concerted activity during non-working hours.

Rest assured, though, not all social media posts are created equal and not all communications are protected by the NLRA. You can read more about these cases here.

So what can employers take away from this?

  1. Even employers of non-unionized workplaces need to stay informed about NLRB decisions.
  1. Employers should frequently review and update their employee handbooks. Although a social media or other corporate conduct policy is important to express the employer’s position against harassment, defamation, etc., all policies should be specially tailored.
  1. At a minimum, social media and electronic communications policies should include a statement that the policy is not intended to keep employees from discussing the terms and conditions of their employment with coworkers.

Do you want to learn more about how to avoid unlawful employment practices? Call CJ or email her at cpersson@adelberg.com.


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