As social media continues to evolve, employers’ rules governing its use in and out of the workplace by employees must continually adapt, not only to keep up with the technology itself, but to ensure those rules are in compliance with the law. The challenge for employers is that the law is ever evolving to keep up with the ever changing technology. Compliance with the law can therefore be a moving target for employers, requiring a great deal of due diligence and good legal counsel.

One of the more recent hot topics has involved whether employers can regulate what their employees say on Facebook. Specifically, the question has been addressed as to whether employees can be prevented from saying derogatory things about their employers on social media like Facebook. The National Labor Relations Board (NLRB) has stated that employers have a right to conduct “concerted activity” with fellow employers. Translated into laymen’s terms, this simply means that employees have the right to discuss their working conditions and compensation with one another and that employers are not allowed to stop it without violating federal law which could lead to stiff penalties.

The big dilemma for employers is defining what constitutes “concerted activity” because it has not been clearly defined by the NLRB. Does this mean employees have the right under federal law to say disparaging things about their employers online? At this point, the answer is unclear. What is clear is that employers cannot make blanket rules prohibiting employees from discussing their work conditions, compensation, or the like on social media like Facebook. Doing so may very well put a company at risk of law suits and harsh federal penalties.

If you’re an employer, you would be well advised to check your official company policies to make sure they don’t contain overreaching social media policies. If you find that they do, it’s in your best interest to make immediate adjustments to ensure you’re in compliance with federal labor law. If you have questions, consult your attorney. An ounce of prevention goes a long way with this issue.

Wade Hardie, JD, MBA
MINES Corporate Counsel