Q. I own a car dealership. The reputation of my company is very important to me, and I have adopted a social media policy to prevent my employees from disparaging the company and our customers publicly. I am also concerned about employees disclosing confidential company information such as our pricing structure. My employees are crying foul claiming that my policy is stepping on their First Amendment rights. Are they right? What do I do?
A. You have every reason to be concerned. Although your employees may be a bit off base in claiming that the First Amendment is implicated in your employment policies, employees do have certain rights to speak publicly and amongst themselves about their employers. Likewise, businesses can protect themselves from, for example, disclosure of their trade secrets and confidential business information.
A recent case, one in a line of many, issued by the National Labor Relations Board illustrates the point. An administrative law judge in a case decided out of Boston, Boch Imports Inc. d/b/a Boch Honda, ruled that certain provisions in the company's employee handbook violated the National Labor Relations Act, which protects the right of all employees, not just union employees, to engage in "concerted activity for the purpose of collective bargaining or other mutual aid and protection."
Although the discussion centered primarily on Boch's policy precluding employees from wearing pins, insignias or other message clothing not provided by the company, there was considerable discussion about the company's policies regulating employee behavior including the social media policy.
Many of the policies, including provisions of the social media policy, a few of which are listed here were found to be overly restrictive:
• If an employee's online blog, posting or other social media activities are inconsistent with, or would negatively impact the company's reputation or brand, the employee should not refer to the company.
• While the company respects employees' privacy, conduct that has, or has the potential to have a negative effect on the company might be subject to disciplinary action ... even if the conduct occurs off the property or off the clock.
• Employees may not post videos or photos that are recorded in the workplace without the company's permission.
These are just a few of the policies with which the NLRB found issue, and there are many traps for unwary employers who regulate employee speech and behavior. For that reason, you should consult with an experienced employment attorney for assistance in crafting a policy that will protect your legitimate business interests without infringing on your employee's rights.
Charla Stevens is admitted to practice in New Hampshire and Massachusetts and can be reached at firstname.lastname@example.org.
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