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Is Your Corporate Social Media Policy Legal?

Social media policies are now becoming a union issue in Canada, after officials seemed to suggest public servants curb personal use of social media, even outside of working hours. In the U.S., the National Labor Relations Board (NLRB) released to the public its 2012 Advice Memorandum, which provides insight into the Board’s decision-making process when determining whether or not social media policies are lawful.

Where can the trouble occur? Overly restrictive social media policies may, of course, lead to labor issues. In 2014, Valero Services, Inc. (which provides employee leasing services to refineries and plants located throughout the United States, including a refinery located in Port Arthur, Texas) agreed to rescind its nationwide social media policy on the grounds the policy interfered with employees’ rights to discuss their terms and conditions of employment on social media.


But simple, general policies can be bad, too. In 2015, Baylor Health Care System/Scott & White Healthcare agreed to rescind various policies, including its social media policies, which the NLRB considered overly broad. For the most part, NLRB cautions against policies that it considers overly broad,  including those that put blanket restrictions on releasing non-public information, friending co-workers, discussing terms of employment online, and more.

The good news? NLRB surprised us all recently by giving a thumbs-up to Landry’s, Inc. for including some common-sense language in its social media policy to help steer employees in the right direction on social platforms. The language in question (and, ultimately, ruled lawful) is this:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

Austin employment attorney Amy Beckstead recommends employers model their social media policies after the policy the NLRB “blessed” in 2013. This policy—which was Wal-Mart’s social media policy—is appended at the end of the NLRB’s May 30, 2012, Memorandum.  The Memorandum includes specific guidelines for what the company considers inappropriate posts, asking employees to be respectful as well as to be honest and accurate, with explanations for each. The policy specifically states that “appropriate and respectful content” maintains the confidentiality of trade secrets, respects financial disclosure laws, among other important points.

“The policy’s specific examples of prohibited conduct helped save it from the fate many other social media policies have had at the hands of the NLRB,” Beckstead explains. At the same time, however, the NLRB-approved policy is less than three pages in length, proving that being lawfully specific does not require writing an overly lengthy document.

In the end, it’s important to consult with an attorney to craft a social media policy that is balanced, meaning it isn’t:

  1. Too restrictive, resulting in labor rights issues.
  2. Too vague, resulting in the NLBR ruling it “overly broad.”

Does your company have a social media policy for employees? When was the last time you reviewed or updated it? Let’s start the discussion.

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