The use of social media throughout the employment cycle is becoming more common. Policies, standards, and best practices are being developed and implemented to reduce potential litigation alleging discrimination, wrongful termination, or invasion of privacy.
Things to Keep in Mind:
- Social Media is here to stay.
- Social media is becoming so ubiquitous and diverse that it is getting increasingly difficult to distinguish social media from other digital media. Social sharing capabilities are being added to more forms of digital content all the time. This includes using a Linktr.ee alternative to add to another form of social sharing nowadays.
- Social Media is public, permanent, and powerful.
- The line between professional and personal online is getting increasingly blurred. Individuals should assume that all of the content they post online will be read by the same audiences, regardless of whether the individual intended it to be a “personal” or “professional” communication.
- Employees are using social media every day, sometimes multiple times a day on multiple devices.
- Employees have legal rights in regards to social media use, including when they use it to talk about their employer and their workplace.
- Employers have rights and responsibilities to protect their data and reputation.
There has been a bit of debate over whether a social media policy is a requirement and can offer protection from liability for a company or whether it is overdoing it. We do know that having a policy can be a first line of defense for a company against a wrongful termination suit. But, truth be told, it is not just having a policy; it is making sure the policy adheres to standards, is enforced consistently and across the board, and employees are trained so they know what is permissible and what can happen to them if they do not follow the rules.
Things to keep in mind:
- Social Media policies can be confusing to develop, implement, read, understand, and enforce.
- It is a process with many steps and many contributors.
- Social Media Policy development is never finished – it is a dynamic document subject to changes and revisions based on external (legislation, technology, etc.) and internal (business objectives, resources, expertise, etc.) factors.
- Social Media policies are part of an over-all strategy that includes ongoing employee communication and training.
- Social Media policies relate to other policies such as email, communication, privacy, confidentiality, technology use, ethical code of conduct, etc.
- Social Media policies must match the culture and operating characteristics of the organization.
The 5 C’s of a Social Media Policy
Some key items for the social media policy include:
- It should be consistent with other company policies that relate to technology use, email use, privacy and confidentiality of company data and clients, and any other policy dealing with communication and digital equipment (including mobile phones and tablets).
- It should identify both the benefits and risks of social media use.
- It should designate contact person(s) for people to consult with in regards to this policy (name, title, contact info including telephone, email and/or other communications contact).
- It should describe firm’s expectations, the fact that individuals are going to be responsible for their online activities.
- It should lay out the requirement of protection of client and firm confidences and address jurisdictional rules on advertising and disclosure to solicit new clients (especially for regulated industries).
- It should anticipate the uses of social media that are most likely to cause harm to the company—such as harassment, invasion of privacy, copyright infringement, inadvertent downloads of malware, and the like—and establish specific expectations regarding each.
- It should be informed by the capabilities of the social sites and mobile devices that employees are most likely to use, both now and in the near future. For example, because so many users access mobile sites through mobile devices and use them to share such things as their physical locations and current activities, you should consider whether you want to restrict employees from revealing their physical location during business hours.
- It should indicate that the company reserves the right to take disciplinary action against who violates – and must outline what those actions may be.
- It should state that the company reserves the right to monitor use of social media by employees while the employee is using company equipment if that is the case.
The National Labor Relations Board has issued at least three memorandums outlining its reasoning behind several social media termination cases. One thing to keep in mind is: “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ in the exercise of their rights to discuss wages, working conditions and unionization.”
According to the NLRB, social media policies need to be narrowly construed, not overbroad, not use vague language, and can also include reminders to the employees to be respectful, fair and courteous in their online postings, not to defame a company’s products or services, that the company’s anti-harassment and anti-discrimination policies apply online, and certain disclosure of confidential information can be prohibited.
Some insights from the NLRB Memorandums:
- Do not be overbroad with your prohibitions: employees have the right to discuss about their terms and conditions of employment, including: to discuss their supervisor’s performance, to complain about their supervisor, to criticize their supervisor and to protest their supervisor’s actions.
- Employees have the right to discuss these things with co-workers and certain third-parties.
- Give examples of confidential information, trade secrets, etc.
- Give examples of what behavior is considered violations of the policy.
- Employers can put limits on postings that appear or would appear to be on behalf of the employer.
- Do not use catch-all legalese clauses alone.
- Do not use overbroad or vague terms such as: defamation, disparagement, or inappropriate.
- Do not require employees to report violations of the policy.
- Do not warn employees to avoid controversial topics – may be interpreted as encouraging employees to keep grievance internal.
- Have the employee sign the policy.
- Train employees on the policy.
 Bloomberg BNA, www.kelleydrye.com