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11.12.2014
In our Social Media on the Job series, we’ve discussed the prevalent use of social media by employers, social media’s effect on hiring decisions, and employer access to your social media account. In this article, we’re going to take a look at some of the issues that arise when employers try to restrict employees’ social media activity.
As mentioned in a previous post, employers have legitimate interests that warrant certain protective measures.
However, problems arise when employers, intending to further these reasonable objectives, implement broad policies directed at employees’ social media activity. Government employees have the benefit of the free speech provisions of the First Amendment.


But for the rest of the non-governmental workforce, the First Amendment offers no protection to social media gripes.
In those cases the NLRB found the policies were overbroad because they could discourage employees from engaging in concerted activity for mutual aid or protection – conduct that is expressly protected by federal law. For example, in one case the Board held that GM’s policy prohibiting online comments that were “offensive, demeaning, abusive or inappropriate” too broad because it could include posts that criticize the employer’s labor policies or treatment of its employees – activity protected by the law. Whether your social media posts are protected concerted activity depends on several factors and each situation depends on its facts. On the other hand, a social media post would generally not be considered concerted activity if it’s an individual employee’s personal gripe.


Also, a social media post that is reckless or malicious – for example those that incite or threaten sabotage or violence, spread lies about a product or person, reveal trade secrets or private health information – may cause concerted activity to lose its protection. As the law attempts to keep up with the rapid pace of changing technology, new issues will arise, challenges will surface, and policies intended to adapt will be implemented.



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