Chances are good that many of your company's employees post personal content on the Internet. Perhaps they have their own Facebook or MySpace page, tweet their observations throughout the day, keep a blog, post comments on other websites, upload photos, or chat with others online.
Many employers are understandably wary about trying to crack down on personal posts. Blogs and social media provide a creative outlet, a way for friends to keep in touch, a place to share opinions and be part of a larger community of pug owners, single parents, or recycling enthusiasts. They are, in a word, personal, and few employers really want to read employees' personal writings or be known as a company that stifles personal expression.
Unfortunately, however, not all employees like their jobs -- and even those who do may not successfully navigate the line between appropriate and inappropriate content. An employee blog or post that reveals company trade secrets, slams a company product, or threatens or harasses other employees can present an unmitigated disaster for a company. Even posts that have nothing to do with work can create major trouble if they express extreme or unpopular views, racist comments, or violent fantasies, for example.
A quick look through news reports shows that employees have used social networking sites and blogs to post:
- a YouTube video showing an employee of a restaurant chain stuffing cheese up his nose -- before putting it on a pizza,
- Facebook posts by an employee chronicling his dates with coworkers,
- MySpace posts by employees of an auto club, commenting on their coworkers' weight and sexual orientation -- and on their plans to slow down the company's roadside assistance to motorists.
- a Facebook post by an employee threatening to punch a coworker in the face "before the end of my shift," and
- a MySpace page a teacher created to communicate with his students, which included nude photos, inappropriate conversation, and curse words.
As an employer, you have the right to control what employees do with the time and equipment you pay for, generally speaking. However, when employees use their own computers to express their own opinions on their own time, an employer's legal rights are more limited. Read on to learn what you can and can't do in regulating employee posts and what you should cover in a posting policy.
Legal Protections for Employees Who Post Online
A host of laws protect an employee's right to speak -- at least about certain topics -- online. These laws include:
- Off-duty conduct laws. A number of states have laws that prohibit employers from disciplining or firing employees for activities they pursue on their own time. Although some of these laws were originally intended to protect smokers from discrimination, others protect any employee conduct that doesn't break the law -- which might include employee blogging or posting.
- Protections for political views. A handful of states protect employees from discrimination based on their political views or affiliation. In these states, disciplining an employee for a political post (for example, one that endorses a candidate or cause) could be illegal.
- Protections for "whistle-bloggers." An employee who raises concerns about safety hazards or illegal activity at work may be protected as a whistle-blower (called a "whistle-blogger" if the concerns are raised in a blog).
- Prohibitions on retaliation. Many employment laws protect employees from retaliation for claiming that their rights have been violated. If an employee complains online about workplace discrimination, harassment, violation of the Family and Medical Leave Act, wage and hour violations, or other legal transgressions, that employee may be protected from disciplinary action.
- Concerted activity protections. The National Labor Relations Act and similar state laws protect employees' rights to communicate with each other about the terms and conditions of employment, and to join together -- in a union or otherwise -- to bring concerns about these issues to their employer. Under these laws, an employee who is fired for posting about low wages, poor benefits, or long work hours could have a plausible legal claim.
Adopting a Common Sense Policy
Online posts are easy to dash off and virtually impossible to retract once published. When employees aren't at work, they probably aren't thinking of the potential consequences of making fun of a coworker's accent or revealing little-known facts about a client. Most likely, they're simply trying to be funny and attract readers.
So what can your company do to curb inappropriate employee posts without running afoul of the law or becoming known as Corporate Big Brother? Adopt a policy letting employees know that their personal pages, blogs, and posts could get them in trouble at work, and explain the types of content that could create problems.
A good online posting policy should explain that, while the company appreciates that employees want to express themselves in the virtual world, problems may arise if their personal posts appear to be associated with the company or violate the rights of the company or other employees. Here are some topics you should cover:
- Use of company resources. Your policy should prohibit employees from using the company's equipment or network to write or publish personal content, or from doing so on company time.
- Company policies apply online. It's a good idea to remind employees that company policies prohibiting harassment, protecting trade secrets, and so on apply whether an employee makes these statements online or in the bricks and mortar world.
- Company name and marks. Your policy should prohibit employees from using the company's trademarks, logos, or other images, and should also prohibit employees from making false statements about the company. If employees choose to identify themselves as employees of the company in an online post, require them to clearly state that the views they express online are their own and that they do not speak for the company.
- Inappropriate disclosures. Remind employees that the company may have a legal duty to keep certain facts confidential, such as information on stock offerings. If employees have concerns about whether something they plan to post falls into this category, they should raise the issue with a manager.
- Inappropriate comments. It should go without saying, but news reports tell us it doesn't: Inform employees that it is inappropriate to make embarrassing or unkind comments about employees, customers, clients, or competitors. Remind them that personal posts can be read by virtually anyone and that they should use common sense when deciding what types of content are appropriate.
For sample policy language on blogs and online posts -- as well as policies on use of the Internet, email, cell phones, and much more -- pick up a copy of Smart Policies for Workplace Technologies, by Lisa Guerin (copublished by SHRM and Nolo).
If you want some advice from a lawyer, Nolo's Lawyer Directory can help you find a local employment lawyer.