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NLRB Warns: Don’t Go Too Far When Writing Social Media Policy

Social media use — both inside and outside the workplace – – is skyrocketing.  Despite promises of riches, the journey seems to be loaded with risks. Those risks often lead many employers to just say no. They view social media as a productivity killer and major distraction in the workplace. 

But forbidding employees from using social media at work is easier said than done.  While blocking access to Facebook, Twitter, YouTube, and LinkedIn is easy, preventing employees from checking these social and business networking sites on their smartphones, netbooks, and iPads is an enforcement nightmare.  It also removes the possibility of leveraging social media for more effective recruiting, competitive intelligence, and customer relationships.

Even more challenging is managing an employee’s social media behavior outside of work. A recent National Labor Relations Board ruling just threw a wrench into the social media restrictions that many employers would like to put in place. In fact, the ruling might have thrown the whole tool kit.

For example, a policy prohibiting employees from saying “anything negative” about their employer would clearly run afoul of the NLRB since this type of discussion is at the core of the right to form unions or engage in concerted activity.

An employee recently posted a negative remark about her supervisor on her personal Facebook page.  Several co-workers posted supportive comments, which led to more negative comments about the supervisor from the employee, according to an NLRB press release. The employee was fired three weeks later.

According to the NLRB, the agency determined after an investigation that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that barred employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.

According to attorney Thomas Deer, who spoke at BLR’s National Employment Law Update, it is much better to be specific in prohibitions against disclosing “trade secrets,” and “business confidential information like customer list, business plans, formulas and pricing data” or “private confidential information about other employees like social security numbers, medical records and the like.”

Creating an employee policy for social media is no longer an option. An effective policy makes employees aware of their employers’ position on the use of social media, and it provides a reference point if it is necessary to take adverse action against someone for their online activity.

Deer offered these tips about what to include in social media policies:

  • The employee must read and sign the policy at hire.
  • The employee must adhere to the company code of conduct/values.
  • The employee may not disclose company confidential information.
  • Remind employees of their own personal responsibility for posts.
  • Limit online activity during work to business-related purposes.
  • There is no expectation of privacy relating to the use of Company-issued equipment or systems, and employees understand that information and data transmitted through Company-issued equipment may be monitored.
  • Communications and transmissions on Company-issued equipment or systems are the property of the Company.
  • Official company blogs, wiki sites, or mashups should only be used in a way that adds value to the Company’s business.
  • Company logos and trademarks may not be used without the Company’s written consent.
  • Consistent with FTC Guidelines, if an employee writes personal blogs or posts to newsgroups, “listservs,” wikis, social networking sites, other blogs, or the like on Company-related topics, including Company products or services, the employee should include a clear disclaimer stating that he or she is a Company employee and that the views and opinions expressed are the employee’s alone and do not represent the official views of the Company.
  • If an employee write personal blogs or posts to newsgroups, “listservs,” wikis, social networking sites, other blogs, or the like on Company-related topics, he or she must be respectful to the company, other employees, customers, partners, and competitors. The employee must use good judgment and exercise personal responsibility. The employee must comply with the company’s confidentiality and disclosure of proprietary data policies. For example, Company proprietary information may not be posted, and Company clients, partners, and suppliers may not be referenced without their approval. The employee may not employ this medium for covert marketing or public relations. The employee must be aware that his or her actions captured via images, posts, or comments can reflect that of the Company.
  • Social networking and blogging activities should not interfere with work commitments.
  • Where no policy or guidelines exist, employees must use their professional judgment, take the most prudent action possible, avoid postings that adversely impact the company’s reputation or business, and consult with their manager or supervisor if they are uncertain about a situation.
  • Other employment policies apply to an employee’s posts to newsgroups, “listservs,” wikis, social networking sites, other blogs, or the like, including but not limited to the Company’s policies concerning code of ethics and business conduct, electronic communication systems use, personal and company property and devices, dealing with the media, harassment, equal employment opportunity, discrimination, retaliation, violence-free workplace, diversity, information security, intellectual property, trade secrets, and any nondisclosure/confidentiality agreements.
  • An employee posting to newsgroups, “listservs,” wikis, social networking sites, other blogs, or the like must be mindful not to engage in any unlawful conduct, such as invasion of privacy, violations of security laws, defamation, etc., and must avoid statements regarding the Company’s future performance, worth, or share price.
  • If an employee views another employee’s posting to a newsgroup, “listserv,” wiki, social networking site, other blog, or the like that violates the Company’s social media policy or other policies, the employee should report the matter to the employee’s manager and/or Human Resources Department.
  • An employee who violates this policy may be subject to immediate discipline, including termination of employment.

Deer also offered these 2 additional tips with caveats:

  • Company-issued equipment and systems are for business use only. (NOTE: Consider whether this approach is truly desirable or achievable).
  • Employees may not access personal networking sites from Company-issued equipment or systems, including but not limited to MySpace, YouTube, or Facebook. The absence of, or lack of explicit reference to a specific site does not limit the extent of the application of this policy. (NOTE: With the increased use of smart phones, this policy might not reduce employee usage since employees will undoubtedly still attempt to access social networking sites during work hours from their smart phones.)

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