Employers must draft clear and specific rules that are not open to interpretation. A plain reading of each work rule should leave employees with no confusion over the permissible and prohibited use of social media. Employers commonly run afoul of the National Labor Relations Act (NLRA) by incorporating general, broad, or vague prohibitions against certain conduct that could be interpreted to chill protected activities.
For example, a work rule stating “employees may not post inappropriate messages on social media sites” would likely be considered unlawfully vague, as it may be interpreted differently by different people. For instance, a recent college graduate who grew up in the Internet age may have a different idea of what constitutes “appropriate” social media activity than do the company’s senior executives. The National Labor Relations Board (NLRB) has further determined that employees are reasonably likely to interpret similar clauses as prohibiting them from speaking negatively about their supervisor, and thus serve as an unlawful restriction on protected activities. The ambiguity of this work rule would likely cause it to be found unlawful, and any employee disciplinary action would likely be overturned should either come before the NLRB.
A more appropriate provision could state that “Employees may not post obscene, pornographic, sexually charged, or similar offensive language.” Another effective provision could state that “Employees may not post harassing or discriminating content based on race, color, religion, sex, sexual orientation, national origin, age, disability, or any other status protected by law.” A further example could be as simple as “Employees may not engage in illegal conduct on the Internet.” These work rules provide clear and specific examples regarding the type of content that employees would reasonably understand to violate the policy.
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