Employers’ Rights to Use Employment Policies to Regulate Employee Activity on Social Media: Exploring the Limits in the Age of Facebook and Twitter

As of 2016, nearly three quarters of U.S. adults use social media. From an employment perspective, much of this communication is benign socializing, as its name implies, however, some employee social media interaction implicates important workplace interests. Where these interests include union related and organizing activities, the workplace interests may be legally protected as well. This Article examines the most recent decisions that have ruled on the application of the National Labor Relations Act (hereinafter “NLRA”) to employers’ social media policies and attempts to explain the parameters of any framework that might guide employers and employees with regard to the boundaries of lawful workplace social media activities and restrictive policies. The article explores the intersection of social media and branding the last two decades. Similarly, the article reviews the rights granted to employees by the NLRA and the relevant National Labor Relations Board (hereinafter “NLRB”) regulatory scheme. The article analyzes some of the important precedent applying the NLRA to employers’ various social media policies to determine their lawfulness and extracts unifying themes to find the permissible boundaries of employees’ social media activities that implicate workplace interests and the employers’ social media policies. The piece concludes that employers may not completely prohibit their employees from engaging with, or participating in social media, although employers may restrict employees’ commercial use of company trademarks or false associations.