Social Media at Work: Employers Adapt to Shifting Legal Terrain

In an age when professional and personal spheres often intertwine online, employers are grappling with how to manage social media use in the workplace. At the forefront of these challenges is the National Labor Relations Board (NLRB), which has sharpened its focus on social media policies related to protected employee rights. Below is an overview of what employers need to know about navigating this evolving landscape—along with best practices to stay compliant and foster a fair workplace.

Beyond the Water Cooler: Protected Concerted Activity in the Digital Age

The National Labor Relations Act (NLRA) protects employees’ ability to discuss wages, hours, and working conditions—whether they are unionized or not. In recent years, the NLRB has underscored that this right extends to online spaces, including current and emerging social media platforms and internal messaging tools like Slack or Microsoft Teams. 

Employers must consider how these protections extend to social media and ensure that their policies, no matter how well-intentioned, do not unlawfully restrict employees’ legally protected conversations.

Key Developments Affecting Employers in 2025

Renewed Focus on Overbroad Policies

The NLRB has consistently criticized overbroad social media and confidentiality policies. In 2025, the Board continues to clarify that any policy limiting employees’ online discussions of wages, hours, or working conditions risks being deemed unlawful without clear language ensuring employees’ NLRA rights.

Practical Tip: Include a clear disclaimer that your social media policy does not prohibit protected concerted activities.

High-Profile Cases Shaping Policy

In October 2024, the NLRB filed a complaint against Apple, alleging that the company maintained unlawful rules regarding employee social media use—specifically, restrictions on Slack communication and guidelines perceived to prevent candid online discussions of working conditions. This high-profile case underscores the Board’s willingness to pursue large employers and signals that restrictive policies can quickly attract federal scrutiny.

Practical Tip: Even if you are a smaller employer, review your policy language closely and revise it if necessary to ensure it is narrowly tailored to legitimate business interests.

Attention on Internal Platforms

While discussions around social media often center on Facebook or Twitter, the Apple complaint highlighted the NLRB’s focus on internal communication tools like Slack or Microsoft Teams. The Board’s enforcement priorities include any digital platform where employees can communicate.

Practical Tip: Apply the same level of caution and legal analysis to internal communication platforms as you would to external social media platforms.

Evolving Social Media Landscape

As new social networks and “private” platforms (e.g., encrypted group chats) emerge, the NLRB has signaled a readiness to adapt its enforcement. Employers should anticipate more guidance on novel situations—like employees discussing workplace matters in private chat groups or using ephemeral-messaging apps.

Practical Tip: Conduct regular reviews of your policies to account for emerging platforms, ensuring that protections remain consistent across all technologies.

Best Practices for Employers

Develop Clear, Specific Policies

• Avoid Ambiguity: Vague prohibitions on “disparaging the company” or “criticizing management” can be interpreted to include legally protected speech. Instead, tailor language to address legitimate issues such as preventing unlawful harassment or disclosing trade secrets.

• Include NLRA Disclaimers: Clarify that nothing in the policy restricts employees’ rights to discuss wages, hours, or working conditions.

Educate Management and Staff

• Training Sessions: Offer training for supervisors and employees that distinguish between protected concerted activities and unprotected individual grievances.

• Consistent Enforcement: Ensure that managers understand how to handle situations where employees engage in critical commentary that may be protected. Inconsistent enforcement can trigger claims of unlawful discrimination or retaliation.

Regularly Review and Update Policies

• Follow NLRB Rulings and Guidance: The Board’s stance can shift rapidly based on new cases or changes in leadership. Employers should monitor NLRB decisions and revise policies accordingly.

• Annual (or More Frequent) Check-Ins: Set a schedule—perhaps once a year or every six months—to assess if any aspect of your policies needs adjustment based on the latest guidance or emerging platform.

Conduct a Legal Audit

• Consult Legal Counsel: A thorough review by an experienced labor and employment attorney can help ensure your social media policy meets current NLRB standards.

• Documentation: Maintain detailed records of policy updates, employee trainings, and any disciplinary actions tied to social media conduct.

Looking Ahead: New Developments and Emerging Trends

State-Level Privacy Statutes

While this article focuses on federal law, many states are considering or have enacted laws limiting how employers can access social media accounts or personal email. Keeping an eye on state-level developments—particularly in more employee-friendly jurisdictions—remains crucial in 2025 and beyond.

Potential Shifts in NLRB Composition

Political transitions can change the composition of the NLRB, leading to shifts in enforcement priorities. Even if the fundamental principles of the NLRA remain the same, the Board’s interpretation and application can vary. Employers must be prepared to adjust policies quickly if new rulings alter the regulatory landscape.

New Technologies, New Questions

Virtual reality workspaces, AI-driven communication tools, and decentralized social networks (e.g., blockchain-based) are likely to spur additional questions around protected activity. Employers should remain flexible and open to revising policies to keep pace with technological advancements.

Staying Ahead: Proactive Compliance Backed by Expert Guidance

The rapid evolution of social media and internal communication tools poses ongoing challenges for employers. The NLRB strongly supports the NLRA, which protects employees who discuss working conditions, wages, and benefits—online or otherwise. Employers who proactively implement clear, narrowly tailored social media policies, robust training, and regular reviews stand the best chance of staying compliant while preserving their legitimate business interests.

Employers can navigate social media boundaries effectively by staying informed of NLRB rulings, monitoring emerging trends, and working closely with knowledgeable legal counsel. As a firm with extensive experience in labor and employment law, we are always here to help you stay ahead of the changes and ensure your business remains compliant, resilient, and ready for what’s next.