There are currently 13 states with laws governing an employer’s access to employees’ personal social media accounts, and 20 other states have similar legislation pending.  According to recent research, 73% of American adult Internet users also use social media, so it is probably a good bet that most of your employees are on social media.

To be sure your company’s policies conform to existing or pending law, employers should consider the following when developing social media guidelines:

NLRA rules on free speech.  The National Labor Relations Act (NLRA) protects all employees’ rights to free speech.  NLRB rulings on social media privacy cases have tended to employ a broad interpretation of the law, siding with employees who have posted negative comments about employers on their personal social media accounts.  In general, employers should shy away from any rules that punish employees for what they post on their personal social media accounts.

State laws.  As mentioned above, there are 13 states that have already enacted social media privacy laws to protect employees.  These include Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington, and Wisconsin.  Similar legislation is pending in 20 other states in 2014.  Before making social media rules for the workplace, employers should consult with their Creative Business Lawyer™ for guidance.

Permissible protections.  In general, employers can institute rules that protect their customers and other employees from being the subject of disparagement or harassment via social media.  Employers can also create policies regarding the usage of the company’s own social media accounts.

How to  handle social media snafus?  What should you do if one of your employees makes a big mistake on your social media account?

Consider how USAirways handled things after one of their employees accidentally posted one of the most lewd and lascivious images you’ll ever see on a tweet in reply to a customer service issue.  They didn’t fire the employee, but saw that it was an honest mistake, and even though it caused a national uproar, they treated it like a learning experience and kept the employee on board.

If you are an employer needing information on the development of employee policies and procedures that conform with state and federal law, contact us to schedule your comprehensive LIFT™ (legal, insurance, financial and tax) Foundation Audit.