Answers provided by employment law expert Richard I. Lehr, Esq.
Can an employer limit what an employee can post on social media?
Yes. Employers may prohibit employees from posting confidential business information, including information about customers, products, pricing, marketing, business strategies and any other proprietary information. Employers also may prohibit employees from posting confidential information and comments about vendors, visitors and other individuals associated with the employer. Employers have the right to act on that.
Employers also may consider what employees post about other employees and the company. For example, vulgar, false or harassing comments are not protected and the employer has the right to act based upon them. Employers also have the right to tell employees that posting information in violation of employer policies regarding discrimination, harassment or retaliation is prohibited.
Is it appropriate for employees to post about the workplace on their personal social media accounts?
Employees may post concerns about work-related issues, but they can’t do so in a manner that would violate company policy. Social media communications increasingly have become a preferred approach for some employees to discuss employment-related matters. However, if the communication is inappropriate as far as the use of vulgar or threatening language, then it may lose its protection and the employer may act on it. Furthermore, posting about the workplace does not include posting confidential business information as described above.
Should every place of business have a social media policy?
The widespread use of social media is such that employers should have a social media policy. The type of policy should be tailored to the employer’s type of business. For example, the scope of a social media policy for a retailer would be different from a manufacturer. Furthermore, employers should be aware that they may not require an employee to give the employer access to the employee’s social media postings. If an employer by the disclosure from another employee becomes aware of an employee’s social media postings, the employer may consider it. For example, last year, an employee called in sick, but posted on her Facebook account pictures of herself consuming plenty of beer at a beer festival. Other employees who were her Facebook friends reported it to the employer. The employer investigated and concluded that the employee falsified the reason for her absence and, therefore, terminated her employment. Although an employer may not require that an employee provide access to the employee’s social media postings, the employer may consider social media postings that are not password protected or otherwise disclosed to the employer.
How should employers address an employee’s personal social media use while on the clock?
There may be circumstances where an employee’s use of social media is for business purposes. That needs to be explained and understood, and it does not have to apply to everyone in the workplace. For example, there may be employees whose jobs are enhanced by using social media for business purposes, while the use of social media for other employees during the work day may be unnecessary.
There is not a “right” to have a cell phone at work or to use social media during working time. Employers have the right to forbid or restrict such use. Many employers have policies that allow employees to have a cell phone at work if used only as necessary. I’ve walked into stores where associates stood behind counters as they looked at their cell phones. This is the type of behavior employers have the complete right to prohibit. Employees may require cell phone use to occur only during breaks and not on the floor.
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