Hughes Hubbard labor attorneys offer some tips for companies creating social media policies in the wake of this ruling.
The attorneys say that all employers, whether unionized or not, should have their social networking policies reviewed against the following guidelines:
1. Social networking policy prohibitions should be narrow rather than broad, given that policies containing blanket prohibitions on criticism of the company or its management are now likely to be viewed as overbroad.
2. However, policies can prohibit employees from using social networking sites to make disparaging comments unrelated to work.
3. Distinctions between employees using their employers’ computer systems as opposed to their personal computers during non-work hours may be relevant for other purposes but are unlikely to be relevant here.
4. Social networking policies may prohibit employee statements that are abusive, libelous or obscene;
5. In defining acceptable employee conduct, policies should distinguish between employee conduct that is rhetorical hyperbole as opposed to conduct that constitutes fraudulent misrepresentations of fact.
6. Employees may be restricted from anticompetitive, disloyal behavior if the policy is properly worded.
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