Wednesday, October 21, 2020

Social Media Policies and the November General Election

It's that time of year again...

No, not the crinkling of dry leaves or heavenly smells of pumpkin spice lattes-it's election time, which means it's time to dust off that social media policy!

Elections pose a unique challenge to human resource departments and employment attorneys. Although we unequivocally support an employee's right to exercise their civic duty and participate in the electoral process, employers should be mindful of the workplace issues that may arise around elections.

This year is particularly notable because (1) this will likely be a contentious election spanning multiple days (and perhaps weeks), and (2) the election is taking place during a global pandemic-thus prompting employees to shift any discussions from now-empty offices to social media.

The U.S. Constitution protects our rights to engage in free speech and assembly. In the employment context, however, free speech rights have been tailored to balance workers' rights and consider an employer's interest in maintaining safe and productive work environments. Employers may limit and regulate forms of speech in the workplace but must abide by certain considerations in specific instances of employees engaging in speech.

Private Employee Speech

Private employers have immense latitude with which to regulate speech in the workplace. Under the National Labor Relations Act (NLRA), however, private employers cannot limit the right of employees to engage in "protected concerted" activity for "mutual aid and protection" regarding conditions in the workplace.

Like the physical workplace, private employers enjoy many of the same protections to regulate speech online as they do in a physical workplace. The National Labor Relations Board (NLRB), the administrative body that oversees claims arising under the NLRA, states on their website that employees "have a right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media." This right only extends to group actions; thus, individual gripes will not suffice.

Employers that find an employee's speech concerning should review their social media policy and confer with legal counsel about appropriate next steps to address the situation accordingly.

Government Employee Speech

Government employers possess slightly less power to regulate speech in the workplace. Government employers can regulate speech in the workplace unless the speech touches on a matter of public concern. If it does, employers must determine whether the speech was made under the employee-speaker's job duties. An employer can then consider whether there is a governmental interest in regulating such speech to maintain workplace productivity and harmony.

Additional considerations should be made when an employee is engaged in political speech on their social media accounts. Here, government employers should be incredibly careful not to make adverse employment decisions based on an employee's political views. Instead, government employers should look to whether the employee publicly identifies (“holds out”) themselves as an employee of the governmental entity and publishes concerning content; their speech makes false or misleading claims about the entity as a whole, or its employees or subsidiaries; or the employee's actions violate the employer’s established social media policy.

If an employee exhibits any of these behaviors online, an employer should review their current social media policy and confer with legal counsel about appropriate next steps.

Social Media Policies

As the election approaches, employers should review their social media policies to ensure they express the employer’s expectations and address the fundamental issues referenced above.

Please refer to these helpful tips when reviewing and/or updating your social media policy:

  • Ensure that ALL employees were provided a chance to review and acknowledge established policies for social media conduct online.
  • Remind employees to be mindful that content published online-in any medium-is at risk of being distributed throughout the internet.
  • False or misleading claims published by an employee about the entity may be subject to disciplinary action.
  • Employees should be discouraged from posting personal work-related complaints online and instead submit complaints to appropriate persons (union representatives, direct supervisors, etc.) established in the employer's code of conduct.
  • Employees should abide by any confidentiality requirements established by the employer.
  • Applicable rules of social media conduct may apply-not just to an employee's personal social media account-but also instances where the employee "comments" on other content.
  • "Holding out" oneself as an agent of the employer online without express permission and supervision may pose conflicts. Although such action is not usually prohibited, employees should be mindful of listing their employment status on social media when publishing content.
  • Employers should set expectations about protecting the entity’s intellectual property (logos, slogan, etc.).