Social media is a necessary minefield for entrepreneurs and jobseekers to navigate. While voiding the past isn't always possible, Foley & Lardner LLP attorney Jennifer Neumann gives the rundown on proper usage of this tool.
Good Social Media Policies and Practices
According to a recent Pew study, 65% of adult internet users claim they use a social networking site, such as Facebook or Twitter. Chances are good that many employees are part of the social networking world. Since the line between personal and professional use is often blurred, employers are wise to implement a social media policy. Policies should be specifically
tailored but there are some general guidelines highlighted below.
1. Avoid being extreme when creating a policy. An absolute ban on use of sites like Facebook may be unrealistic, especially as employers increasingly use social media to accomplish their own business objectives, and employees have easy access to social media offsite. In fact, a recent survey of young professionals and college students found that 56% of them would not accept a job from a company that bans social media or at the very least, would circumvent any such policy.
2. The policy must be worded and implemented in a manner that it doesn't interfere with or deter employees in the exercise of their Section 7 rights under the National Labor Relations Act. Even non-union employees have the right to engage in protected concerted activity, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment or when one employee does so on behalf of a group of employees. Such activity can include, for example, complaining about working conditions or wages. Social media policies that broadly prevent an employee from "disparaging" an employer may be viewed as interfering with or chilling Section 7 rights and, therefore,
unlawful. According to the NLRB, social media policies should provide specific examples of conduct that would violate the policy and have limiting language reassuring employees that their Section 7 rights are still protected.
3. Clearly state in the policy that employees should have no expectation of privacy when using company technology or electronic communication resources. Confirm that the computer/electronic communications systems belong to the employer and should only be used for authorized purposes. State that the company has the right, but not duty, to monitor employees' use of such resources.
4. A policy should include a reminder that the company's restraints also apply to social media. For example, state that the company's sexual harassment and non-discrimination policies apply as equally to social media as they do to in-person communications. Reiterate that company rules regarding trade secret and confidential information apply to information sent via the Internet and that no trade secret or confidential information may be posted on social media. The difficulty with many social media outlets is that once something is posted, it spreads quickly, and is almost impossible to contain. Competitors, news outlets, and bloggers may quickly take note of the information and distribute it even if the initial post is later removed.
5. Instruct employees that they need to identify themselves as employees if they are endorsing a product or service since a failure to do so may result in a violation of, for example, the CAN-SPAM Act or the FTC Guides regarding advertising.
Beyond these provisions, make sure to provide employees with a copy of the policy and collect signed copies from them. This will provide evidence that they were given notice of the rules and consented to the terms.
A well-written policy will not only benefit the employer, but it also provides an employee with greater clarity regarding the parameters of internet use. Make time to train employees regarding the policy and be consistent when applying the policy. Precautionary measures may save you from major problems down the road.