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.
The approach to social media policies in Europe, however, is much more business-friendly. While there are national differences, legislation tends to provide employers more leeway to regulate the social media use of their employees than current US legislation does. An employer may restrict the freedom of expression of its employees to a certain degree in order to protect its legitimate business interests through a social media policy, which includes protecting its reputation. This means that a social media policy in Europe can be further reaching than a social media policy in the US, which has an impact on what disciplinary action can be undertaken. In order to enforce appropriate use of social media, however, it is important to have an internal policy on social media use, to inform all employees of the policy and to apply the policy fairly and reasonably.
Knowing that follow up and monitoring social media behavior in the EU can be a challenge for US companies – where different languages are used and different platforms may be preferred – we see a trend of global policies being replaced by region specific policies or so-called layered policies, whereby an addendum to the global policies is issued for certain regions or countries.
If you need additional guidance, one of our employment attorneys will be able to provide guidance both on the US and EU aspects of your social media policy.
(1) See also ‘What’s in a “Like”?: Tips for Employers and In-House Counsel in Crafting Social Media Policies’ by Matthew C. Luzadder
(2) Brussels based employment partner authored an overview of legislation applying to social media policies in 23 EU Member States.