Social Networking and the Workplace
Well-intended employment policies designed to protect the company
from employees' misuse of Facebook and other social media services
can have grave legal and regulatory consequences.
As the use of social media and communicating via social
networking has become more pervasive in our society, nearly every company, no matter
how large or small, must eventually grapple with employee use of social
networks, with the objective of balancing employee privacy with company
In support of that objective, some employers have started asking
prospective employees for their log-in credentials for their social media
accounts (see “Job Seekers Getting Asked for Facebook Passwords,”
March 21, 2012).
Legal Obstacles. Unfortunately for employers who engage in this practice, they run the risk of
violating federal laws, including the Stored Communications Act. (The Act,
passed in 1986, addresses voluntary and compelled disclosure of “stored wire and
electronic communications and transactional records” held by third-party
internet service providers.)
Moreover, one of the pillars of social media, Facebook, takes the position that its terms of service prohibit users from
sharing their passwords and has indicated it will pursue legal action against
employers who require employees or prospective employees to provide their
To further complicate matters for employers, U.S. Senators Richard
Blumenthal and Charles Schumer have asked the U.S. Department of Justice and the
Equal Employment Opportunity Commission to investigate the practice, noting that
employers who do so may have access to information that is off-limits in making
Beyond the legal concerns, requiring employees to share their social media
credentials can lead to practical human resource problems, as the coercive
tactic arguably violates employees’ privacy rights and can cause employee
disengagement and discontent.
However, at the same time, employers have a legitimate interest in their
employees’ online activities, because employees may identify themselves as
working for the company and discuss the company online. To address these issues,
many employers promulgate policies to clearly communicate company guidelines for
employees when it comes to the use of social media. These become a part of the
Sounds simple, right? Not so fast.
Social networking policies have recently come under scrutiny by the National
Labor Relations Board (NLRB), which has issued guidance about these emerging
issues and what constitutes a lawful social media policy. The NLRB wants
employers to understand that policies should not be overly broad, and that
social media policies that are too sweeping in scope may impact employee rights.
Specifically, the NLRB is concerned about the right of employees under federal
labor law to discuss wages, hours or other working conditions with each other.
The Board has concluded that employee discussions of these issues on Facebook
and other social networking sites may be protected under federal labor law.
Many employers respond by saying that NLRB guidance doesn’t apply to them
because their company is not unionized. However, the National Labor Relations
Act, which is administered by the NLRB, applies to most employers, even if the
company, like most private U.S. companies, does not have union workers.
To help employers avoid legal, regulatory and employee relations pitfalls
associated with social networking policies, here are a few suggestions for what
should and should not appear in your company’s employee manual and social
prohibit employees from posting statements on social media that violate the
company’s non-discrimination and anti-harassment policies;
bar employees from making untrue statements about the company;
limit employees’ use of their personal social media accounts while at work;
communicate to employees that what they say about the company may impact the
require employees to respect the confidentiality of the company and fellow
be specific and provide examples about activities that are against company
Employers should steer clear of:
asking employees for the passwords to their personal social media accounts;
obtaining unauthorized access to employees’ social media accounts;
making vague statements in their policies, such as statements that
“inappropriate” posts are prohibited; and
prohibiting employees from discussing wages, hours or working conditions
through their social networks.
Company policies should also include language making clear that the policy is
not intended to restrict any employee rights under federal or state labor laws.