A social media policy may be unenforceable if it is difficult to determine what speech is allowed versus what speech is prohibited. Here’s how you can provide clarity through context:
A work rule’s context provides the key to determining the “reasonableness” of a particular rule’s construction. Rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, generally are not unlawful. By providing a list of specific examples of unacceptable behavior, statements, and activities, an employee can construe a potentially vague work rule and easily delineate between conduct that is prohibited and that which is permitted.
For example, while an employer’s work rule that prohibits “inappropriate postings” may be found unlawfully vague, the National Labor Relations Board has approved a work rule that prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” By providing specific examples of what the employer means by “inappropriate postings,” the employee would reasonably understand that the work rule is designed to prohibit solely unlawful conduct and not protected activity.
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