social media policy Archives - The National Law Forum

A social media policy or a set of guidelines helps your employees make smarter decisions when marketing your brand, products and services online and may mitigate the risk of coming under the radar of the FTC or another regulatory agency or simply avoiding bad PR.

Key Players. Legal should play a key role in creating a social media policy or set of guidelines, but it is wise to involve personnel from marketing, IT, and HR. Also consider including representatives from a selection of departments to get valuable input from employees that the policy is intended to guide.

Identify and Evaluate. Before drafting a social media policy, the key players must carry out internal due diligence.

Identify and evaluate the categories of confidential information that your employees have access to and may inadvertently share on social media.
Identify and evaluate the type of content that employees post on social media platforms. Is the content generally created in-house? By an ad agency? From other third-party sources? Are social media campaigns usually text-only or do they include photos, music, videos, endorsements? Understand the legal issues associated with posting content online.
Identify and evaluate other legal risks associated with the use of social media in your business, including third-party terms of use, employment laws, privacy claims, securities laws and other laws that may be triggered by the use of social media by employees. For example, the National Labor Relations Board has found overly restrictive social media policies to violate employees’ protected rights.

Purpose and Scope. The policy should reflect the type of social media engagement that your company and employees actually use. For example, does your company maintain a Facebook® page or a blog? Use LinkedIn® to post articles? Run promotions on Instagram®? Do your employees use personal social media accounts to post on behalf of the company or only employer-created accounts? The answers to these questions will affect the types of social media guidelines that you should create for your employees.

Be Practical, Positive and Consistent. The policy should be easy to read and interpret. The intent is not to discourage social media use, but to make use smarter. Try to phrase the guidelines as things employees “can” do rather than cannot do. Use terms that employees engaged in social media will understand. For example: avoid using terms from the Copyright Act such as “reproduce, distribute or display,” and instead use “post, tweet or pin.” The policy should also match the general values and culture of your company and the other policies that you may have in place that overlap with social media policies.

Training. Training is essential. Do not just add the policy to the employee handbook and hope that your employees will read it. Explain why social media guidelines are important to the company and the company’s reputation and relationship with customers, vendors and other third parties. Explain the legal risks of “social media posts gone wrong.” Arrange a lunch and learn to walk through the policies and provide examples of “Dos and Don’ts.” Create a short checklist of key takeaways from the policy and post the checklist in areas where employees who regularly post on social media work.

Monitor and Re-visit. Monitor compliance and ensure enforcement is uniform. Social media changes quickly, so the policy should also be re-visited frequently to make sure that new forms of social media engagement are captured.

ARTICLE BY Orla M. O’Hannaidh of Womble Carlyle Sandridge & Rice, PLLC

An article by Gerald F. Lutkus of Barnes & Thornburg LLP regarding Employer Social Media Policies was recently published in The National Law Review:

The NLRB has continued its assault on employer social media policies and a recent Administrative Law Judge ruling from the Board further complicates the issue. The Acting General Counsel, in his various reports on the Board’s social media cases, has made it clear that employers need to include disclaimers in their policies that nothing in the policy is meant to interfere with employee Section 7 rights. However, a San Francisco-based ALJ, in a lengthy opinion dealing with the social media policy of G4S Secure Solutions (USA) Inc., struck down that company’s social media policy even though it included such a disclaimer.

Specifically, the ALJ found that G4S’s policy was overbroad and would chill the exercise of Section 7 rights by employees of the company. G4S’s policy stated, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.” The ALJ expressly determined that “it cannot be assumed that lay employees have the knowledge to discern what is federal law, and thus permitted under the disclaimer, as opposed to what is prohibited ‘legal matter’.” Though the ALJ did not go beyond that, the clear suggestion from the opinion is that a disclaimer of noninterference with Section 7 rights must be far more particular in explaining what types of rights are, in fact, protected under Section 7 and, thus, not prohibited under an employer’s social media policy. Of course, most employers are reluctant to spell out in detail in their own policy manuals exactly what types of activity employees may engage in as protected activity under Section 7 of the NLRA.

The judge’s ruling also struck down that portion of the company’s policy forbidding employees from commenting on work-related legal matters, but allowed a provision that prohibited the posting on social media sites of pictures of employees in their security uniforms.

A full text of the ALJ’s ruling in G4S Secure Solutions can be reviewed here.

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