There’s no escaping social media these days. Not only do most of your employees use it, it’s a good idea for your company to have a strong social media presence. And while that can yield some great benefits in terms of marketing and branding, it can also open you up to some liabilities.
Hundreds of lawsuits have sprung up over the past several years regarding what employees can and can’t post about their employers—and what actions those employers can and can’t take in response. There are also legal skirmishes surrounding who “owns” a company’s social media profile and its connections to other social media users.
So what should your social media policy include? At the minimum, it should cover these topics:
Consistency with established company anti-harassment policies
Confidentiality of company information
Privacy of candidates, clients and employees
Employees posting as themselves vs. posting as the company
Accuracy and honesty in posting
Being respectful and professional
Posting on social media while at work
Depending on your social media activity, you can also include discussions of adding value with each post or comment and contributing to an online community of customers.
That’s a lot of policies to determine, spell out and enforce. It doesn’t help that the National Labor Relations Board has issued no fewer than three updates on their social media guidance already this year. Plus, social media is always changing, so developing a social media policy is very much like trying to hit a moving target.
When faced with a daunting task like this, your first instinct might be to retreat to legalese and put down a whole bunch of words about heirs, estates, wherefores, hereins and whereases. However, that would be a mistake; not only do walls of text give the writer and the reader a headache, they don’t offer much legal protection.
The NLRB’s most recent release of social media guidelines included examples from the social media policies of companies currently being investigated by the NLRB. The passages all read as fairly standard policy language… and the NLRB tore many of them to shreds.
For instance, the instruction not to “release confidential guest, team member or company information” was deemed unlawful by the NLRB because it was too broad and could include discussions of company policy that are protected by the National Labor Relations Act.
Instead, the NLRB recommends the phrasing: “Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”
Similar over-broadness was found in passages concerning privacy, good judgment and not “picking fights.” However, the agency approved of several parts of these sample policies in areas such as copyright protection and making sure employees’ work-related posts aligned with stated corporate values.
Perhaps most importantly, the NLRB noted that simply inserting language like “This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act” doesn’t undo any unlawful policies that preceded it. So you don’t get to bat cleanup with that clause.
The best way to put together a social media policy is to meet with your legal counsel and at least two employees who use social media regularly and determine what policies you want your company to have. After you’ve made an initial list, check the latest update from the NLRB to make sure your policies are legal.
Once you’ve got policies that pass legal muster, have your legal counsel sit down with the sharpest editor (or, failing that, the most impatient person) in your company and write out the wording on your policies. While counsel might want to add legal verbiage, the editor/impatient person will want to keep the language as simple as possible. The resulting document should occupy a nice middle ground.
Finally, show the policy to several people who haven’t been involved in the process yet and ask them if it makes sense and if they get a clear sense of advisable behavior when it comes to social media. If not, send it back to the editor and legal counsel until you’ve got a policy that’s clear, actionable and legal.
Unfortunately, you’ll have to revisit your social media policy more often than probably any other component of your employee manual, especially if we have a change in administration this January. But if it helps, think of all you’ll learn about technology and the law in the meantime!