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Dear Employer: Is Your Social Media Policy Legal?

by William J. (Paz) Haynes, III

Social media is a fact of modern life. Billions of people across the globe use a variety of platforms such a Facebook, Twitter, Instagram, and Snapchat to connect with family, friends and the world at large. Businesses have moved rapidly to capitalize on opportunities for growth in social media, but have also recognized the realities of social media in the everyday lives of their employees.

Recent studies indicate that most employers in the United States now have some form of social media policy and that employers are relaxing policies restricting social media use during business hours.

Even though attitudes are changing on social media in the workplace, employers still face burning questions in developing best practices related to social media.

1. What privacy rights do employees have in their social media use and content?

Access to social media is now linked to the traditional rights of privacy recognized in the Constitution, and state and federal laws are being created (an interpreted) to protect employees' privacy interests in the social media content.

Several states, including Tennessee, have passed laws making it illegal for employers to demand access to employees' social media passwords and "private" social media pages.

2. What interests, if any, does the employer have in monitoring or "policing" employee use?

Despite the increased privacy protections for social media, employers still have legitimate interests in monitoring social media content. Social media laws still recognize an employer's right to monitor social media activity created with employer property (phones, laptops, servers, etc.) and social media content that is tied to their "brand."

Employers also have a legitimate right to review social media content that perpetuates unlawful harassment or discrimination in the workplace.

3. How far can the employer go to regulate employees' social media conduct?

A series of recent decisions from the National Labor Relations Board (NLRB) hold that, under certain circumstances, social media content may qualify as "protected activity" under the National Labor Relations Act.

Those NLRB decisions have shed more light on the limits on employers when creating social media policies and how employers respond to social media activity by their workers.

4. What are the best social media practices in a changing digital and legal landscape?

The law of social media changes as rapidly as the nature of social media itself. In 2015, employers are best advised to create policies that properly balance their workers' rights to privacy and protected workplace activity against the employers' interests in protecting their brands, ensuring productivity, and addressing unlawful conduct in the workplace.

Are_Your_Social_Media_Policies_Legal_sqEmployers should seek out qualified legal counsel when reviewing and creating social media policies and practices.

I will be addressing these questions in greater detail in the Sterling Education Seminars' Fundamentals of Employment Law on August 11, 2015.
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