Employer Social Media Policies Continue to Raise Complex Legal Issues

By: Rudman Winchell Attorney Colin E. Howard

There are plenty of reasons why an employer may want to control what its employees say on social media about their job. But unless an employer carefully tailors its “social media policy,” it may run afoul of one or more tricky legal issues, particularly if it is a governmental entity.

For example, the town of Fairfield recently adopted a policy restricting town employees from, among other things, posting statements on social media that could cast the town in a bad light or “impair working relationships,” the Bangor Daily News reports. The policy was apparently prompted by a town employee who posted disparaging comments about a coworker online. The American Civil Liberties Union of Maine is challenging that the policy as improper, asserting that the policy is overbroad and will have “a chilling effect” on the town’s employees’ “right to free expression.”

Public employers are subject to the First Amendment’s prohibition against abridging the freedom of speech. However, not everything a public employee says is protected by the First Amendment. The Maine Supreme Court has stated that a public employee’s speech is not protected if it is uttered as part of his or her official job duties. Quintal v. City of Hallowell, 2008 ME 155. The rational is that when a public employee’s job requires a person to speak, the speech is not made in the person’s capacity as a “citizen.” Rather, the person is working, and just like a private employer, the public employer has a right to control what is said on behalf of the employer. However, a public employee’s speech is protected if made in the person’s capacity as a citizen and the speech involves a matter of public concern. In short, a public employee’s speech is only protected if it is not uttered in the course of official work duties and it involves a matter of public concern.

There are other legal issues that all employers must recognize when crafting a social media policy. Employers must take care not to restrict any speech that could be construed as concerted activity, which is protected by the National Labor Relations Act. For example, in a 2012 ruling, the National Labor Relations Board determined that a car dealership’s policy on “courtesy” could improperly restrict concerted activity. The policy provided that no employee “should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The NLRB ruled that the restriction was unlawful because “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing [protected] activity, such as employees’ protected statements …that object to their working conditions and seek the support of others in improving them.” Employers must also take care not to implement restrictions that could discourage an employee from engaging in whistle-blower activity, such as reporting dangerous conditions or illegal behavior.