The surprising EU perspective
Drafting a global social media policy is a balancing act. Employers need to protect their legitimate business interests, but must do so with respect for the employees’ rights to freedom of expression. Striking the right balance depends on the legislation in force in the different countries where your company is active. Compared to the strong focus on protecting employees’ rights in the scrutiny of social media policies in the US, social media policies can go much further in protecting legitimate business interests in Europe. If you have a US company that is active in Europe, you may want to rethink your social media policy for your European entities.
In the US, the standard for what is allowed to be included in social media policies is largely shaped by the National Labor Relations Board (“NLRB”), which is responsible for enforcing the National Labor Relations Act (“NLRA”). The NLRB has given a broad interpretation to the employees’ right to engage in concerted activities under Section 7 of the NLRA. The NLRB finds provisions of social media policies unlawful if they would have a chilling effect on the employees engaging in the activities protected under Section 7. This leads to provisions being struck down by the NLRB because of their wording or for being overly broad.