The Two Words That Can Make Your Social Media Policy Unlawful

Written by Robert G. Brody and Rebecca Goldberg on October 31, 2012

Employers have the right to limit the use of social media while employees are working but how they phrase that limitation makes all the difference.  In EchoStar Techs. LLC, an administrative law judge for the National Labor Relations Board (“NLRB”) struck down a social media policy for, among other things, directing employees to refrain from social media use on “company time.”  However, it explicitly approved a policy belonging to Walmart, which limited social media use during “work time.”

Although EchoStar is the first case to apply this distinction to social media policies, the NLRB’s distinction between “company time” and “work time” is not new.  The NLRB interprets the phrase “company time” to include nonworking time, such as paid breaks, while “work time” means only time spent actively working.  Because the National Labor Relations Act protects an employee’s right to engage in protected, concerted activity during breaks, paid or not, the employer cannot impose limits on communication during all “company time.”

This case underscores the importance of careful drafting of social media policies by an attorney experienced in labor law.  Most employers should use the NLRB-approved policy from Walmart as a model, and should deviate only with great care.  However, the Walmart policy may be inappropriate for some employers, such as financial or healthcare employers, which deal with especially sensitive information.   Whether drafting a policy from scratch or modifying the Walmart policy, every word matters.

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More