LLQ: May an employer prohibit employees from showing their employment affiliation online?

COMPANY POLICY DIRECTING EMPLOYEES TO TAKE DOWN THEIR EMPLOYMENT AFFILIATION ON SOCIAL MEDIA ACCOUNTS – IS IT VALID?

This is a challenging inquiry. LLQ refers to Labor Law Questions, a series in this blog.

When resolving labor law issues, this is the framework to use:

1) Management Prerogative; and

2) Labor Law.

1. Management Prerogative

A Company has the wide latitude to regulate all aspects of employment, including but not limited to, hiring, work assignments, transfer, time and place of work, supervision, discipline, recall, and dismissal

This is called management prerogative.

The question for us is this: Does management prerogative extend to the employee’s online presence?

To answer, we have first to remember the two (2) limitations of management prerogative:

1) It must be done in good faith; and

2) With due regard to the rights of the employees.

First, on good faith, is there a justification or a legitimate business interest why the employer is prohibiting is employees from mentioning online that they are employed with their company?

If there is one, you can proceed with the next steps of the analysis and come up with an answer to our primary question. Yes, such a policy is valid considering it is justified.

For instance, if a company is engaged in the business of manufacturing highly toxic and very dangerous biohazard, those positions handling these substances may be prohibited from mentioning their affiliation with the company to lessen or minimize security risks.

The same goes for those handling very crucial source code and/or programs in companies engaged in cybersecurity.

Having said that, the same justification would not apply to administrative office work. Could an administrative assistant in the above two businesses create the security risk being avoided by positions which directly handle the toxic substances or source code? Unlikely.

Second, on the rights of employees, this involves the right to free speech. Posting information online is an act of free speech protected no less by the 1987 Constitution. However, like all other constitutional rights, free speech has limits, where the rights of of thers begin. In our context, it is the employer’s rights.

Since in our two examples the employer is able to justify the prohibition, the concerned employee may be compelled to comply. The said employee can post anything online, except his affiliation with the company.

2. Labor Law

If there is a specific Labor Law on the matter, we would have easily answered the question in one sentence citing a legal provision.

Evidently, there is no specific law on the matter – yet. There is also no known Supreme Court Decision resolving a case involving the subject matter.

The closest jurisprudence is the Duncan case where the Supreme Court affirmed the validity of a pharmaceutical’s company policy against entering into romantic relationships with employees of a direct competitor. Note that in that case, the complainant event went further as to marry an employee of a direct competitor, with full knowledge of the policy. This resulted in his dismissal which would be confirmed to be valid by the high tribunal after flip-flopping decisions of the lower courts, as it was a novel question then.

Since Labor Law is an exception, it is management prerogative which will govern since it is the general rule.

Conclusion

With a justification or a legitimate job interest, the Company may prohibit employees from showing their employment affiliation online

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