Social media has changed the landscape of employee privacy, but it has been around for long enough that companies should be gaining a clearer understanding of the rules around it. Clearly that isn’t the case, as we see more and more lawsuits and NLRB decisions spurred by improper use and discipline for use of social media in the workplace and even outside of work.

Employees are being terminated for what employers deem to be inappropriate material posted on sites such as Twitter, LinkedIn, YouTube, MySpace and Facebook, but what truly constitutes “inappropriate” material is still unclear. And each new ruling by the NLRB seems to take employers by surprise, leaving them scratching their heads when writing and updating their social media policies.

Two Sides of the Coin

“Big and small companies alike are realizing that social media is a great way to reach out to potential clients, potential customers, for recruiting, and for improving employee morale and creating a sense of community, so there are all these benefits,” says Angela Bosworth, Vice President of Compliance and General Counsel at EmployeeScreenIQ. “But the flip side is that the nature of the medium allows for potential confidentiality breaches; it allows for information to be shared that should not be shared,” she says.

“It also gives employees another means by which to communicate and have a voice and sometimes that can be mistaken for the company’s voice. So while it can be a great tool to have your own employees and people within the company spread the good word about the work you are doing, it can cut the other way. Almost any benefit you are getting from social media could potentially have a negative impact on the organization,” she says.

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Redefine Policies

To reduce the potential negative impact of social media use, employers need to be aware and address the risks of this medium, beginning with company policies.

Review the policies you already have in place, advises Bosworth. Consider the ramifications if the medium is Twitter, Facebook, or other social media sites, and assess whether you have to make any adjustments to existing policies to address the issues presented by these communication platforms. Confidentiality polices and codes of conduct are particularly vulnerable and should be reviewed to ensure that prohibited activity is clearly defined in a way that translates to social media.

“There’s no definitive right way to do it and there’s very little case law on this, so employers are just feeling their way through it and hoping that they’re addressing things proactively,” says Bosworth. “The initial reaction of a lot of companies was to try to lock it down, to create these very restrictive social media policies that were specific to Facebook, Twitter, YouTube… The pushback we’ve seen from the NLRB gives employers some direction as to what that entity thinks is appropriate.”

The NLRB has been clear on one thing: Social media policies cannot be overly broad in that they can’t restrict the rights of employees to discuss terms of employment or conditions of their jobs with their coworkers. Wording such as

Monitor Developments

But the term "overly broad" is subjective and employers still have questions about where to go from here.

“I wish there was a cut and dried answer but I do think that reviewing your policies in light of the recent NLRB guidance and decisions is a wise route. I’m not saying that the NLRB is necessarily right in all instances, but now we know where they are coming from, now we have some clear blueprints for what will and won’t be acceptable,” says Bosworth.

Some language to avoid in polices includes wording to the effect that “statements posted electronically that damage the company, defame an individual, damage a person's reputation or violate company policies, may be subject to discipline, up to and including termination.”

As each new case is decided, it becomes a little clearer how the rules are developing, but there is still no easy solution, and employers need to stay on top of the developing cases to ensure their policies aren’t likely to get them into hot water.