The use of social media by employees is as fraught as it is widespread, and creates tremendous legal risk for the employer. Indeed, employers are wise to require adherence to a thorough policy regarding employee use of social media both inside and outside of work. The best policies will aim to sidestep potential legal landmines by preventing unauthorized disclosure of the company’s trade secrets and other confidential information, violations of the Federal Trade Commission Act arising from an employee’s promotion of company products, infringement of third party intellectual property rights, employee harassment, and privacy violations.
On the other hand, social media policies are liable to overreach. For instance, Section 7 of the National Labor Relations Act guarantees employees the right to engage in collective bargaining and other concerted activities for the purpose of mutual aid or protection. The National Labor Relations Board has extended this right to employee social media activity. Now, bills signed into law last year in California may further limit the ability of employers to restrain employee use of social media, and require revision of current policies.
In 2018, California passed a number of new laws affecting the relationship between employer and employee. Among these new laws were amendments to the Code of Civil Procedure and the Fair Employment and Housing Act (“FEHA”). One law limits the ability of employers to include nondisclosure provisions in settlement agreements arising from claims of sexual harassment. See Cal. Code Civ. Proc. § 1001. Although certain portions of the settlement may still be subject to confidentiality provisions—such as the amount of settlement, and the identity of the victim—the agreement may not prevent the employee from disclosing the facts underlying the claim. Another law prohibits employers from requiring current employees to sign non-disparagement agreements which would prevent employees from disclosing information about unlawful acts in the workplace, specifically relating to sexual and other forms of harassment. See Cal. Gov. Code § 12964.5.
Many social media policies currently require non-disparagement and employee protection of the company’s goodwill and business reputation. In light of these new laws, those policies may have to be revised to avoid language which may be construed as preventing the disclosure of facts related to sexual harassment in the workplace. For example, the following language would stay within the bounds of these new laws while still preventing disparagement:
Use good judgment about what you post and remember that anything you say can reflect on the Company. Always strive to be accurate in your communications about the Company and remember that your statements have the potential to result in liability for you or the Company. You should not post any defamatory or disparaging remarks, comments, or statements concerning the Company, its business, employees, products, or customers. Notwithstanding the foregoing, the policy does not, in any way, restrict or limit your ability to disclose facts relating to certain claims for sexual harassment in the workplace, testify truthfully in any public forum, exercise any protected rights, or comply with any applicable law or valid order of a court of competent jurisdiction or an authorized government agency.
Failure to adjust social media policies may result not only in the voiding of the entire nondisclosure or non-disparagement provisions, but can also create public-relations headaches and damage employee morale. Be sure to consult with a California employment attorney before making any substantive changes to your employee policies and procedures.