Social media is all around us. It is growing faster than any technology we’ve seen thus far. Nearly everyone is posting or blogging or tweeting. Sometimes it is harmless chatter, but other times it can be malicious or dangerous. It can also expose your company to risk.
For example, what if one of your employees posts something negative (and false) about a supervisor, customer or competitor? What if it’s true? What if it’s about employment terms and conditions of work? What if employees are posting while on the job instead of working? What if the content is pornographic or obscene? What if the employee is sharing confidential customer or pricing information? These are but a small sample of the many legal issues social media creates.
One of the problems with regulating social media is employees often perceive this as invading their privacy. And this is especially the case when you try to tell employees what they can or cannot do when they are not at work. As a result, it is more important than ever to have a well-written, consistently enforced policy addressing social media and its impact on the workplace. Here are some things to consider.
Scope. You need to decide if you want to regulate equipment or content. Clearly, you can decide whether or not — and for what purpose — employees can use your equipment, whether that includes computers, laptops or company phones. As far as content goes, you can prohibit disparaging, false statements about your company, co-workers, work, customers, vendors, etc. It is harder to prohibit employees from making disparaging but true statements. It is also much harder to stop off-duty statements/conduct and employee use of their own equipment. At the very least, we recommend that you prohibit use of company equipment for personal reasons and prohibit dissemination of false or illegal content.
Privacy. Because employees view restrictions on social media as invading their privacy, it is important to remind employees they have no privacy rights when it comes to company equipment. At the same time, it is worth reminding employees that they should not be engaged in personal activities when they should be working, so posting, tweeting, blogging, etc. while at work is forbidden. Since social media makes disclosures instantaneous and often irreversible, it is also a good idea to remind employees of the need to maintain the confidentiality of company information.
Disclaimer. Since you can’t stop employees from using social media on their own time and with their own equipment, we recommend that you require employees to post a disclaimer anytime they make statements about your company, work, products or competitors. The disclaimer should state that the views expressed are solely those of the individual and not the views of the company or management. Note that content can include text, graphics, or video so the disclaimer requirement should apply in each of these cases.
National Labor Relations Act. Recently, the Acting General Counsel of the NLRB issued a memorandum advising employers of situations where efforts to regulate social media might violate the law by interfering with employees’ rights to engage in protected, concerted activity. In short, you cannot prohibit employees from talking about work or working conditions — including people at work who affect the working conditions. It is still lawful to prohibit false statements but you cannot absolutely prohibit efforts to post, blog, or tweet about work.
“Friending.” Supervisors and managers should be reminded that they should not send “friend” request to employees; nor should they “friend” their employees. Doing so increases the risk of a harassment or discrimination claim.
As with any other employment policy, it is important that you provide training and awareness to all employees so they cannot claim surprise if you enforce the rules. This is especially important with respect to social media because it does impact personal privacy and employees will naturally want to know the limits. Because social media and the related technologies are evolving so rapidly two other things are vital: Make sure your policy coordinates with other workplace policies and keep it up to date.