Should Your Business Have a Social Media Policy for Employees? – Andrew Kasmen
Posted by Member Solutions on Tue, Feb 21, 2012 @ 07:00 AM
The explosion of social media ― Facebook, Twitter, LinkedIn and other social networking sites ― has created some unique issues for employers. How can you address employees’ use of social media at the workplace? More importantly, how do you deal with it outside of the workplace? What are employers’ rights and employees’ rights with respect to the use of social media tools? This article will examine some of these issues in this relatively new, but rapidly expanding, area.
What Is The Current State of the Law?
Social media law is a quickly-growing area of employment law, but, because it is still in its infancy, employers and employees are many times left to their own devices. As the law develops, a number of questions are emerging, including whether an employer can prohibit its employees from posting work issues and concerns on Facebook, Twitter and other social networking sites. As with most of the issues in this area of the law, the not-so-simple answer to that question is yes … sometimes.
In the United States, the National Labor Relations Board (NLRB), the agency that handles issues involving labor unions, has been setting the rules regarding social media and the workplace. Calling social media communication “protected concerted activity,” the NLRB has held that even non-union employers cannot prohibit a single employee from trying to induce group action via social media, in seeking to bring employee complaints to the employer’s attention. Formerly water cooler gossip, today, with social networking, this communication could go viral making what was once a private discussion with an employer into a potential public relations nightmare.
As part of a recently issued report of its various findings, the NLRB provided some guidance to employers. The guidance allows a proper social media policy to be enforced but may limit what an employer is allowed to do to discipline an employee who takes his complaints about the employer online and restrict employers’ attempts to prohibit employees from discussing the employer, its employees or competitors on social networking sites.
What Is An Employer To Do?
First, establish a social media policy. If you already have a policy, review it and ensure it addresses social media issues. Your social media policy must be specific (use examples) and narrowly tailored so that it meets your company’s legitimate policy objectives (e.g., preventing disclosure of trade secrets), without infringing on “protected concerted activity”.
Also, the policy must be clear and understandable to the average employee. Ambiguity and/or lack of specificity in a social media policy are unacceptable.
Second, communicate the standards set in your social media policy through the introduction of the policy, as well as training on these issues. Any social networking policy must be very clear as to what is considered acceptable usage of social media both inside and outside of the office.
So, what can I put in my company social media policy?
Based on the NLRB’s guidelines, a company’s social media policy should specifically address items such as:
- Acceptable levels of use of social media while at work, either while on company computers or on personal devices
- Acceptable and unacceptable references which may appear online, including references to the employer, other employees, clients, and competitors
- Transparency and disclaimers – that is, explaining how the policy will be implemented and addressing the policy’s limitations.
- Monitoring practices and enforcement of the policy
- Reference to existing company anti-bullying and harassment policies – How does the policy correspond with existing company policies on these issues?
- Sanctions for the breach of the policy, linked to disciplinary procedures – as with any policy, what are the possible disciplinary measures that will be taken?
Because social media law is new and rapidly evolving, much of what you try to do may be obsolete within a very short time. To avoid situations that may haunt your business, do your best to stay up to speed on developments in this area of the law and how it impacts your business.
Disclaimer
Member Solutions is not an attorney and does not provide legal advice. Further, the information provided in this article is not, nor is it intended to be, legal advice. It is being offered as a general information service. The laws in your jurisdiction may differ. You should consult an attorney for specific advice regarding your particular situation.
Andrew S. Kasmen, Esq. is General Counsel to Member Solutions.
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