Dealing with the Employees’ Use of Social Media – A Guide for Employers

By Leiza Dolghih, Godwin Lewis PC

With the growing use of social media by employees, a solid social media policy is vital to reducing litigation and mitigating the risk of liability to employers that may be created by their employees’ use of Facebook, LinkedIn or other social media websites. Can employers monitor such accounts? Should they? Can they ask employees to access their accounts if they suspect that an employee has made disparaging remarks about the employer or used the account to harass other employees? Should employers have a written social media policy? What should it say? How should they enforce it? This post provides a guidance that will help employers navigate through some of these issues.

Q: Should employers have a social media policy?  

A: In the past few years, a social media policy went from being a trendy buzzword to being a necessity for any successful business.  A week does not go by without a story on the local or national news about an outrageous twit or post made by a company’s employee that drew negative publicity to the company. Behind the scenes, many lawsuits are filed by employees who have been fired for misuse of social media but who, due to the lack of social media policy at their company, are able to claim disparate treatment or retaliation by the employer as the cause of their termination. Having a good social media policy and consistently enforcing it can be crucial to avoiding bad publicity and litigation.

Q: What should a social media policy state?

A good social media policy should state, among other things, that employees may not: (1) disclose the business’ or its customers’ confidential information; (2) use their social media accounts to harass, intimidate or engage in other forms of prohibited or illegal conduct; and (3) misuse the company’s copyrighted materials and intellectual property.

Employers must make sure, however, that the language of the policy does not violate Section 7 of the National Labor Relations Act, which states that employees have the right to discuss wages and other terms and conditions of employment. Many social media policies have been found by the National Labor Relationship Board invalid because their language was so broad that employees could reasonably conclude that the policy prevented them from discussing the conditions of their employment. For example, the NLRB has struck down policies that generally prohibited employees from making negative statements about the company or making statements that damaged the company’s goodwill. Therefore, striking a balance between protecting the company and not violating employees’ rights can be difficult, but a well-drafted social media policy will do just that.

Q: Can an employer block the use of social media websites at work?

A: Yes. There is no federal or Texas states law that prohibits employers from blocking access to social media websites at work.

Q: How should employers enforce the policy?

A: It is not enough to have a written social media policy, but the employers should consistently enforce it.  Arbitrary or haphazard enforcement of the policy can be used by some employees to argue disparate treatment or retaliation. Thus, once the policy is implemented, it should be applied to all employees equally.

Q: What should employers do if they suspect that an employee is using his or her social media account to harass or intimidate another employee or customer?

A: Monitoring the employees’ social media accounts is a double-edged sword for employers since it can lead to employers discovering family, medical or other private employee information that the employer, otherwise, would not have access to. Thus, if an employer chooses to monitor the use of social media at work, such monitoring should be done in accordance with clear and narrowly-tailored rules and should be conducted by a neutral department or persons that are not employees’ immediate supervisors.

If an employer receives a report or a tip that an employee is using his or her social media account to make statements that are harassing or contain threats of violence against another employee or a customer, the employer must investigate the allegations, even if the statements are made outside of work hours or the workplace. Ignoring such allegations can expose the employer to potential liability. Also, keep in mind, that unlike several other states, Texas does not have a statute that prohibits employers from requesting their employees’ social media passwords.

Leiza Dolghih is a business and employment litigation attorney at Godwin Lewis PC with a specialty in non-competition, non-solicitation, and non-disclosure agreements and trade secrets misappropriation. She can be reached at Leiza.Dolghih@GodwinLewis.com