Social media is all around us. It is growing faster than any technology we’ve seen thus far. It seems nearly everyone is posting or blogging or tweeting. Sometimes, it is just harmless chatter; other times, it can be malicious and 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 being posted is pornographic or obscene? Does it matter if the employee is just “passing it on”? What if the employee is sharing confidential customer or pricing information? These are just 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. 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. The following are some things to consider when establishing a policy:
You need to decide whether you want to regulate equipment or content. Clearly, you can decide whether—and for what purpose—employees can use your equipment, including computers, tablets and company phones. As far as content goes, you can prohibit disparaging, false statements about your company, co-workers, work, customers, vendors, etc. It is more difficult 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, I recommend you prohibit use of company equipment for personal reasons and prohibit dissemination of false or illegal content.
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 they should not be engaged in personal activities when they should be working, so posting, tweeting, blogging, etc., while at work is forbidden. Because 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.
Because you can’t stop employees from using social media on their own time and with their own equipment, I recommend you require employees to post a disclaimer anytime they make statements about your company, work, products or competitors. The disclaimer should state the views expressed are solely those of the individual and not the views of the company or management. Remember: Social media 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 National Labor Relations Board 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. You also can’t prohibit them from talking about 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.
Supervisors and managers should be reminded they should not send “friend” requests to employees, and they should not accept “friend” requests from their employees. Doing so increases the risk of a harassment or discrimination claim against your company.
As with any other employment policy, it is important 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 impacts personal privacy, and employees will naturally want to know the limits. Because social media and its related technologies are evolving so rapidly, you must ensure your policy coordinates with other workplace policies and you must keep your social-media policy up-to-date.
David C. Whitlock is of counsel with Miller & Martin PLLC, Atlanta. He has more than 25 years’ experience advising and counseling employers about various areas of labor and employment law.