Refresher on workplace social media policies as the contentious US presidential election approaches

The 2024 general election has seen a range of views from across the political spectrum, views expressed by many workers in their respective fields. social media platforms and that some employees choose to speak out in an offensive or even hateful manner.

Is your organization equipped to handle employee social media posts that could be categorized as hateful, offensive, or potentially dangerous or violent and could negatively impact your reputationdisrupt your business operations, jeopardize your customer base or impact employee morale and talent retention? Recent case law provides best practice guidance that can strengthen your company’s social media policies in anticipation of the employee sharing controversial opinions online that could impact your organization’s brand and bottom line.

Reviewing your company’s social media policy in the context of your workforce’s online engagement is critical, as is ensuring you update your current policies in line with new legal developments.

Trends in the use of social media

Social media is a huge part of our personal, professional and social lives, and this reality is not going to change anytime soon. Companies should therefore routinely assess whether their policies can mitigate the impact of employee social media use and how such employee use can impact the company’s brand.

Politics is a major reason why people use social media. A 2024 Pew study found that 59% of X users reported that keeping up with politics or political issues is a reason they use the platform.

Employers should also keep in mind that consumers rely on social media as a source of accountability for businesses, as evidenced by a Sprout Social questionnaire It found that 81% of people reported that social media increases accountability for companies.

While it’s important to stay informed about these statistics, it’s also important to gather information about the culture of social media engagement within your organization. For example, on which platforms is your brand most vulnerable? In what ways do employees and consumers interact with business-generated content?

In order to provide the right guidance to their workforce, it is imperative that employers not only understand the relevant social media platforms, but also regularly review their social media policies to help protect the company’s brand from potentially offensive political content that an employee can post.

A strong social media policy can help protect companies from liability

Recent case law indicates that many courts consider conduct that has occurred outside the workplace, including social media posts, to determine employers’ liability for employee actions, such as harassment.

Courts also consider whether an employer can be held liable for disciplining an employee based on the employer’s workplace conduct or social media policies for the employee’s online activities. For example, indoors Urban v. C2 Education SystemsIn a case from the Middle District of Florida, an employer’s social media policy helped protect the employer from liability by providing a legitimate business reason for an adverse personnel decision after an employee violated the policy.

Similarly, the Northern District of Ohio recently stated: Knopp v. Brotherhood of Locomotive Engineers that “a private employer has the right to restrict a private employee’s use of social media and to discipline the employee when he or she makes statements that violate policy, especially when the statements… put the employer in a bad light can state.”

As these cases demonstrate, the physical boundaries of the workplace do not draw the line for what constitutes possible behavior. But what should a social media policy include to increase an employer’s reliance on it in the event of a lawsuit?

A statement describing the scope of the social media policy

Just like with the policy in question Urban v. C2 Education SystemsA strong social media policy should explicitly state that it applies to social media use even when an employee is off-duty, if the employee’s social media platform identifies the individual as an employee of the company. The social media policy should also state that this identification does not have to be explicit and can include the use of the company logo.

Suppose other policies, such as an anti-harassment policy, should be followed on social media

Courts, including the Ninth Circuit Court of Appeals in Okonowsky vs. Garland, have ruled that harassment that occurs online through social media is actionable and that an employer can be held liable for such harassment. A strong social media policy should therefore inform employees that online harassment of colleagues will be subject to disciplinary action, both under the company’s anti-harassment policy and social media policy.

Ensure that policy updates are communicated to employees regularly and that employees verify receipt of updates

Although policies typically state that it is the responsibility of employees to read and familiarize themselves with company policies, companies should have a formal system or process for notifying employees of policy updates in a timely manner. Courts, such as the Northern District of Ohio in Arredondo v. Beer Barrel Inc.often include as part of their analysis whether an employer’s records show that the employee received a copy of the policy. Employers must also maintain and maintain employee verification that policy updates have been received and read.

Social media policies must be closely tailored

While employers should have strong social media policies in place to protect employees and the company’s brand, NLRB in Stericycle, Inc. Recently, a new standard was established that requires an employer to carefully tailor its rules and policies to ensure that joint activities are not penalized or discouraged. This standard, updated in August 2023, applies to social media policies.

How can employers ensure that a robust social media policy does not unlawfully affect employee rights?

Ensure that the social media policy does not prohibit or otherwise restrict employees’ right to engage in collaborative online activities related to the workplace, including discussing or advocating for workplace changes

While a social media policy may prohibit illegal behavior that occurs online, such as harassment or discrimination, employees have the right to engage in lawful discussions on online platforms, including discussions about the workplace. A social media policy should be reviewed to ensure that it is not so broad as to limit these protected rights and also explicitly states that it is not intended to interfere with such rights.

Ensure policy enforcement is well documented to support legitimate business reasons

A best practice is always to document enforcement of policies and disciplinary actions. Employers must document violations of the social media policy as well as the disciplinary actions taken to address the violation. Such documentation must be consistent with the business interest driving enforcement or discipline in the specific circumstances.

Ensure consistent enforcement

Inconsistent enforcement of policies can undermine the argument that social media policies are appropriately tailored and applied without discrimination. Employers must apply consistent discipline for similar policy violations. The language of the policy should also be carefully tailored so that a reasonable employee cannot interpret the policy to allow for potential inconsistent enforcement. As noted in a recent NLRB decision apply Sterifiets to a company’s social media policy – ​​Starbucks Corp. & Travis Hiett – a social media policy that appears to allow a company to “pick and choose who to monitor based on whatever pretext” may violate the National Labor Relations Act.

Despite the controversial nature of this year’s election, employers can use strong social media policies to protect employees and the company brand from potentially offensive social media posts from colleagues. Employee political expression on social media platforms is here to stay, but the law generally supports companies that seek to protect employees and consumers from objectionable content through workplace conduct and social media policies. Despite legal protections, companies should be aware that social media policies do not restrict, discourage, or punish employees from participating in lawful joint activities.