Lexology (03/16/12) Cori Stirling

Many employers have created nonfraternization and social media policies to regulate various aspects of employees’ personal conduct. However, depending on the breadth of the written policies, these policies may have the unintended consequence of prohibiting conduct other than romantic relationships or derogatory comments, which may cause unwanted legal ramifications for the employer under the National Labor Relations Act. Also, implementation of nonfraternization policies and social media policies may result in unhappy employees, which in turn could lead to discrimination lawsuits and claims.

To avoid such potential legal difficulties, employers seeking to adopt these policies must ensure their policies are carefully crafted. Section 7 of the NLRA gives employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. A work policy that may chill employees in the exercise of these rights could violate the NLRA, so having narrowly tailored nonfraternization and social media policies is critical. Even if the employer has perfectly crafted nonfraternization and social media policies, the policies may still result in liability under discrimination law if not enforced properly. The key to overcoming allegations of discrimination is to enforce the policy consistently, so that no employee can successfully allege being singled out for enforcement based upon a protected status.