Policy required document Workplace
Social Media Policy
A social media policy tells employees what they may and may not say online about the company, its customers and each other, who may speak for the company, and what the company will and will not do with employees' personal accounts. It is the one policy on this list where a badly written document creates more liability than no document.
The National Labor Relations Act protects most private employees, union or not, when they discuss wages, hours and working conditions with each other, including on social media (29 U.S.C. 157).
Under the Board's Stericycle standard, a rule that could reasonably be read by an economically dependent employee to chill that discussion is presumptively unlawful, and rules against disparaging the company, disclosing salaries or posting about coworkers have all been found to cross the line.
The standard's future is uncertain after changes to the Board in 2025, but the statute underneath it is not.
The other half is what the employer may not demand. California Labor Code 980 forbids requiring or requesting an employee's or applicant's social media username or password, requiring them to open their account in the employer's presence, or requiring them to divulge personal social media, with an exception for material reasonably believed relevant to an investigation of misconduct, and it bars retaliation for refusing.
More than half the states have a similar law. New York Labor Law 201-d separately protects legal off-duty activities.
A defensible policy is short: it protects confidential information and customers, forbids harassment and threats, says who speaks for the company, disclaims personal opinions, and carries an explicit statement that nothing in it restricts protected discussion of working conditions.
Obligation ledger
Who requires it, and what each one says.
| Source | Applies when | What it requires | Status |
|---|---|---|---|
| National Labor Relations Act, Section 7 29 U.S.C. 157 | Nearly all private employers, union or not; supervisors and some others excluded | Employees have the right to engage in concerted activities for mutual aid or protection, which the Board and courts read to include discussing pay and conditions with each other on social media. A policy that restricts it is an unfair labor practice. | Mandatory |
| NLRB, Stericycle, Inc. 372 NLRB No. 113 (August 2, 2023) | Every private employer covered by the National Labor Relations Act, union or not | A work rule is presumptively unlawful if it has a reasonable tendency to chill employees from exercising their Section 7 rights, read from the perspective of an economically dependent employee; the employer may rebut by proving a legitimate and substantial business interest that cannot be served by a narrower rule. Overruled the more permissive Boeing standard. | Implied |
| California Labor Code, social media Cal. Lab. Code 980 | Every California employer, for employees and applicants | An employer may not require or request a username or password for personal social media, access to it in the employer's presence, or that it be divulged, except material reasonably believed relevant to an investigation of employee misconduct or violation of law, used solely for that purpose. No retaliation for refusing. Legally required. | Mandatory |
| New York Labor Law, lawful off-duty activities NY Labor Law 201-d | Every New York employer | No discrimination for legal recreational activities, political activities and legal use of consumable products outside working hours and off the employer's premises, subject to stated exceptions. Off-duty online activity is largely within it. | Mandatory |
Required sections
- A plain statement that nothing in the policy restricts employees from discussing wages, hours or working conditions with each other or with anyone else, online or off, and that the company will not read it that way
- Who is authorized to speak for the company, and a disclaimer requirement for personal posts that mention the company
- Protection of confidential information and customer information, cross-referenced to the confidentiality policy
- Prohibition on harassment, threats and discriminatory content directed at coworkers, customers or the public, cross-referenced to the harassment policy
- Endorsement and disclosure rules where employees promote company products (FTC Endorsement Guides, 16 CFR Part 255)
- What the company will not do: request passwords, require access in its presence, or demand personal content, except as the state investigation exception allows
- No retaliation for lawful off-duty online activity, with the state statute named where one applies
- How to report a concern, and that the company does not monitor personal accounts as a practice
What the examiner asks for
What changed
Change log.
Frameworks
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Questions
What people ask.
Can we discipline an employee for a post that insults the company?
Only if the post is not protected concerted activity. A complaint about pay, scheduling or a manager, shared with coworkers, is usually protected even when rude. A post that discloses a customer's confidential information or threatens a colleague is not. The policy has to draw that line, and the savings clause is what keeps the policy itself lawful.
Can we ask an applicant to show us their Instagram?
In California and most states, no. Labor Code 980 forbids requesting access or the password, and requiring them to open the account in front of you. Looking at what is public is a different matter, though what you learn there can create discrimination exposure.
Why is this policy so short compared with the others?
Because most of the risk is in what a longer version would forbid. Every additional prohibition is a rule the Board can read as chilling protected speech. The policy protects confidential information, customers and coworkers, states who speaks for the company, and stops.
Does this apply to our managers?
Supervisors are generally outside Section 7 protection, so the policy can hold them to a stricter standard. It is worth saying so, because a single rule applied to everyone is judged by its effect on the employees who are protected.
Sources
29 U.S.C. 157, NLRA Section 7 rights of employees (Cornell LII)NLRB, Board adopts new standard for assessing lawfulness of work rules (Stericycle), August 2, 2023Cal. Lab. Code 980, social media (California Legislative Information)NY Labor Law 201-d, discrimination against the engagement in certain activities (NY Senate)