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How to Update your Employee Handbook to Include Social Media

Use specific language to avoid the long arm of the NLRB

Posted by Jared Jacobson on October 30th, 2012

It is a good practice for small, medium and large companies to update and revise their employee handbooks annually to reflect current legal trends. This practice is essential to keep companies informed on recent legal developments through their employment counsel and in so doing, should theoretically have the effect of reducing potential liability of the company.

However, this only works if management understands the new law/trend and is properly trained on how to implement it. Employment counsel often helps with this training.

The Old Rules are Old

The National Labor Relations Board (NLRB) has issued some interesting and somewhat progressive decisions that could have an impact on all types of companies in various industries, ranging from small to large, manufacturing to technology.

Not too long ago, company employment counsel was smart to advise their clients that a strict, “plain English”, broad, non-disparagement-focused social media policy was important to prevent disgruntled employees from defaming and perhaps affecting the value of their companies to an unknown source of potential consumers on the internet.

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However, over time, this practice of writing and having employees acknowledge a broad social media policy, and further requiring employees to adhere to it, has become not only difficult to monitor, but even harder to legally enforce. In fact, the monitoring itself could present problems, e.g., managers “friending” their employees on Facebook through other employees.

No Muzzling Allowed

Case # 1: In New York, EchoStar Corp.’s social media policy, which prohibited employees from making “disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or . . . their products/services” was interpreted to be beyond the limits of what speech a company may properly prohibit.

The court, following a fast growing trend, decided that a published policy that could be considered to affect employees’ rights to freely discuss the terms and conditions of work, whether it is online or otherwise, is a violation of the National Labor Relations Act. It is clear that the NLRB is holding strong against an employer’s right to muzzle their employees…even when the content of their speech may directly harm the employer.

Case # 2: In another case, involving Costco Wholesale Corp., the NLRB found that employees could reasonably interpret the company’s email and technology policy as a violation of their rights. The policy stated: “Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

Be Specific

So what do these rulings mean for companies? Be specific and avoid broad-based employee “gag like” policies. Handbook/social media policy provisions should be narrowly tailored with language that addresses that company’s specific, valid and legitimate concerns.

For example, a statement that says, “an employee may not say anything that would shed a negative light on the company” would very likely be struck down as unenforceable when used offensively and illegal when defending.

Although well intentioned, a policy such as the one above, could reasonably be interpreted as having a chilling effect on employees’ right to freely discuss the terms and conditions of their employment.

As noted above, it is important for management to understand the boundaries and apply the agreed-upon company policy in a consistent and thoughtful way. In order for this to be possible, companies need to spend the time and resources training their day-to-day managers on how to implement the company’s policy on these issues. Managers should not be “shooting from the hip”, in a reactive manner, rather, a pro-active approach is recommended.

Jared Jacoboson
Jared Jacoboson

Attorney and founder of The Law Firm of Jacobson & Rooks, LLC

Jared Jacobson is one of the founding members of The Law Firm of Jacobson & Rooks, LLC. Jared Jacobson represents individual employees and executives as well as counsels employers in conducting workplace investigations to mitigate risks of employment and whistleblower litigation. Jared regularly performs human resource audits to ensure compliance with state (PA, NJ and NY) and federal discrimination, misclassification and wage and hour laws, as well as the risks associated with whistleblowers. Jared helps his clients understand the importance of investing in pre-emptive annual policy audits and work-place training as well as performing a proper investigation when a complaint is filed or threatened which can be invaluable when compared with the alternative.

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