Ohio Employment Law: What is a “Social Media Policy”?

Labor and employment attorney Stephen E. Imm

Something that didn’t even exist 15 years ago is now all the rage. I’m talking about “Social Media Policies” in the workplace.

What does this mean? Why do many employers have these policies? Are they important? Are there legal rules relating to these policies?

I don’t need to tell you about the explosion and popularity of social media sites like Facebook, Twitter, Instagram, etc. You know, those things that those of us over a certain age have been introduced to by our kids.

Well, it’s not surprising that many people post on these sites about their experiences at work. Usually the posts are benign and inoffensive. But sometimes they can be serious or controversial. And sometimes they can be downright nasty. They may criticize co-workers or supervisors. They may badmouth the employer. They may complain about working conditions or pay. They may argue in favor of organizing a union at work. They may be threatening or abusive.

Can employers limit or restrict what their employees say in social media content related to work? Can it discipline or discharge an employee based on what he or she says on Facebook and the like? Do employees have any rights in this area?

For “at will” employees – that is employees who are not in a union, do not have a contract, and do not work for the government in a civil service position – employers have a fairly free hand to discipline employees for social media posts that the employer doesn’t like. If the employee makes statements that injure the employer’s reputation, that violate its anti-discrimination or harassment policies, that threaten co-workers, or that exhibit a poor attitude toward work – to give just a few examples – the employer is generally permitted to act on that, and to discipline or discharge the employee. This does not infringe on the employee’s right to “free speech” since the employer is a private entity and is not acting as the government.

Even employees of private, non-union employers, however, do have certain rights with regard to social media postings. All employees, for instance, have the right to engage in “concerted activity” to improve the terms and conditions of their employment, or to discuss possible organization for their mutual benefit. So if employees are talking together on-line about their pay, or safety in the workplace, or the way they are being treated by management, employers may not take adverse action against the employees for doing those kinds of things.

It sometimes can be hard to distinguish what is and is not permitted in these cases. For instance, if an employee goes on a profanity-filled rant about his working conditions, and is disrespectful or even hateful toward his managers, can the employer discipline him for being disrespectful and hateful, or would the employee’s rant be considered “concerted activity” if it is directed to his co-workers and discusses their mutual working conditions?

If you have questions about your rights as an employer or employee, or if you want some guidance in implementing an appropriate and legal social media policy, be sure to contact competent legal counsel familiar with the latest developments in this quickly-developing area.