The Complete Compliance and Ethics Manual 2021

Introduction

As of September 2020, there are more than 3.8 billion active social media users around the world, representing 49% of the total global population. More than six new users join social media every single second. It’s not a fad, and it’s not going away. Because social media is prevalent in almost every organization, it’s important to know the rules and to craft a solid social media policy.

Key Regulatory Considerations

For US organizations, this section highlights important laws and regulations that may affect your social media activities and the activities of those in your organization. This list is not exhaustive but is meant as a helpful starting place when building social media policies and procedures. Please note, nothing in this article is meant as legal advice.

National Labor Relations Act Rules and Interpretations

1. Section 7 of the National Labor Relations Act ^[2] protects concerted activity. This includes social media activities.

   1. Social Media posts by your employees that discuss wages, hours, or working conditions are likely protected as concerted activity.

   2. Employee comments on social media are generally not protected if they are mere gripes and not made in relation to group activity among employees.

   3. Employees have the right to complain about work to each other. (Note that this does not give employees the freedom to disparage others without penalty.)

      • This right only extends to employees insofar as their gripes or complaints do not offend, abuse, harass, defame, or discriminate against others. If you would discipline the employee for saying something on your premises, you are likely allowed to discipline them for that same statement made on social media (as of July 2020).

2. The act determines lawfulness of social media policies.

   1. Policies should not be so sweeping that they prohibit activities protected by federal labor laws, such as discussing wages or working conditions among employees.

   2. In July of 2020, the National Labor Relations Board (NLRB) made a sweeping change in its standards for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements—including profane, racist, and sexually harassing remarks—in the course of activity that would otherwise be protected under the NLRA ^[3]

      1. This new standard replaced several NLRB standards and tests used to determine the appropriateness of disciplining employees for social media behavior.

      2. The NLRB instituted a two-part test, which takes into consideration whether an employer would have taken the same action (discipline or discharge) even in the absence of the protected activity, often done by showing consistent discipline of other employees who engage in similar conduct outside of social media.