Create a comprehensive Social Media Policy compliant with NLRA §7 protected concerted activity, FTC Endorsement Guidelines (16 CFR Part 255), CFAA, state off-duty conduct laws, and Title VII anti-harassment requirements. Covers personal and company account guidelines, monitoring, confidentiality, disciplinary consequences, and approval process.
What Is a Social Media Policy?
A Social Media Policy is a formal written document that establishes an employer's rules and expectations regarding employees' use of social media, both on behalf of the company and in a personal capacity. The policy addresses personal social media use during work hours, conduct standards for personal accounts, guidelines for official company accounts, confidentiality obligations, monitoring practices, FTC endorsement disclosure requirements, and the disciplinary consequences of policy violations.
In the United States, social media policies must navigate a complex legal landscape that balances employer interests with employee rights. The National Labor Relations Act (NLRA), Section 7 (29 U.S.C. 157), guarantees employees the right to engage in protected concerted activity, which includes the right to discuss wages, working conditions, and other terms of employment with coworkers. The National Labor Relations Board (NLRB) has issued extensive guidance on social media policies, including General Counsel Memoranda OM 12-59 and OM 12-31, establishing that policies which could be reasonably construed to chill protected activity violate the NLRA. Employers must include NLRA §7 savings clauses in their social media policies.
The Federal Trade Commission (FTC) Endorsement Guidelines (16 CFR Part 255) require employees who endorse the company's products or services on social media to disclose their material connection to the company. The Computer Fraud and Abuse Act (CFAA, 18 U.S.C. 1030) makes it a federal crime to access another person's computer or account without authorization. The Stored Communications Act (SCA, 18 U.S.C. 2701) protects the privacy of stored electronic communications.
Many states have enacted social media privacy laws that prohibit employers from requiring employees to disclose personal social media passwords or account credentials. Some states also have off-duty conduct laws that protect employees from discipline for lawful off-duty activity, which may include certain social media posts.
When Do You Need a Social Media Policy?
A Social Media Policy is needed by every employer in the United States, regardless of size or industry. Social media use by employees creates significant legal and reputational risks for employers, including the potential for disclosure of trade secrets and confidential information, defamation claims, harassment and discrimination complaints, intellectual property infringement, and FTC enforcement actions.
The policy is particularly important for employers in industries where social media engagement is frequent, including technology, media, marketing, retail, healthcare, financial services, and any employer with a public-facing brand. Employers who authorize employees to post on official company accounts need clear guidelines on content standards, approval processes, and FTC endorsement disclosures.
The policy should be established when the company is formed or when it begins using social media for business purposes. It must be reviewed at least annually and should be updated whenever there is a significant change in applicable law, NLRB guidance, FTC enforcement policy, or the company's use of social media.
Having a written social media policy is also important as evidence in employment litigation. An employer who can demonstrate that it had a clear, lawful policy in place and consistently enforced it is better positioned to defend against claims of discrimination, harassment, or wrongful termination arising from social media-related discipline.
What to Include in Your Social Media Policy
A comprehensive Social Media Policy must address several essential elements to comply with federal and state requirements and protect both the employer and employees.
The legal framework section should identify the applicable laws, including NLRA §7, FTC Endorsement Guidelines, the CFAA, the SCA, Title VII, and applicable state social media privacy and off-duty conduct laws. A critical element is the NLRA §7 savings clause, which explicitly states that the policy does not restrict employees' rights to engage in protected concerted activity.
The scope section should identify all persons covered and define social media broadly to capture current and future platforms. The personal use section should state the employer's position on social media use during work hours while preserving NLRA §7 rights.
Personal account guidelines should set conduct standards without overreaching into protected activity. Confidentiality provisions should reference the Defend Trade Secrets Act of 2016 (18 U.S.C. 1836) and include the statutory whistleblower immunity notice required by that Act.
Company account guidelines should identify authorized posters, establish an approval process, and require FTC endorsement disclosures. Monitoring provisions should comply with the Electronic Communications Privacy Act (ECPA), the SCA, and state social media privacy laws.
Anti-discrimination and anti-harassment provisions should reference Title VII, the ADA, the ADEA, and applicable state laws. Disciplinary consequences should be clearly stated, with an express exclusion for protected concerted activity. The policy review schedule, policy owner, and approval authority should be identified.