Social Media in the Workplace: Employer Rights and Obligations

Statista’s most recent figures show that 82% of America’s population uses social media. For businesses, this means that if you don’t already have a social media policy in place, you should be working on implementing one. 

Issues That May Arise From Employee Social Media Use.

An employer’s workplace social media policy should contain provisions that reduce its legal and reputational risk stemming from employee social media use. The risks posed to an employer resulting from employee social media use are broad, ranging from intellectual property infringements to Federal Trade Commission (FTC) enforcement to employee harassment claims. 

Implementing a Workplace Social Media Policy

Your workplace social media policy must address these risks without infringing upon employee rights and protections. It should include provisions which outline, amongst other things:

• The employer reserves its right to monitor employee social media accounts and activities that are public, conducted using company devices, or that take place during work hours. 
• Confidential or proprietary information, trade secrets, or other non-public information should not be posted via the employer’s social media or any personal social media accounts. 
• An employee should receive written permission before posting on the company’s behalf on a company social media platform.
• Employees should not post content that violates the Federal Trade Commission Act. (You may wish to outline that employees should not publish promotional content about products or services sold by the business without first getting employer consent if you are concerned about compliance or enforcement by the FTC.)
• Employers should require employees to identify themselves as an employee of the company but outline that they are not representing the company if they post on social media about the company or a company product or service. 
• Employees are not permitted to harass other employees or make derogatory, sexist, racist or other disparaging comments about or to other employees via social media platforms at any time.  The employer’s harassment and discrimination policy should apply to all social media postings.
• No photographs or videos taken in the workplace should be published without the employer’s consent. 
• Employees should refrain from posting negative comments or commentary that may negatively impact the employer’s reputation or branding. This should include restrictions about how employees talk about the business, its clients, and other employees. However, it is important that these provisions don’t prevent the disclosure of workplace harassment or discrimination (read more on this here), or other protected rights, including those granted under the National Labor Relations Act. 
• The employer’s intellectual property rights should not be violated by employees posting on social media.
• Specifically address ownership of content created relating to the workplace. These provisions will vary depending on whether the employer wants to own that content, attribute content to an employee, or allow the employee to retain ownership of that content. 

Legal Counsel’s Roles in Implementing Your Workplace Social Media Policy

We recommend that employers consult legal counsel before implementing a workplace social media policy. This is particularly important if you used template documents to draft the policy or if you intend to rely on the social media policy to discipline or terminate an employee. 

If you need assistance implementing a social media policy in your workplace, reach out. We’re here to help! 

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