Social Media Policies in the Workplace

In the 1990s, companies and employees found themselves facing legal trouble as they navigated the do’s and don’ts of appropriate email use. Today, social media presents a similar problem. Employees, customers and suppliers are all using LinkedIn, Facebook, Twitter, YouTube and Flickr. 

Unfortunately, employees have often demonstrated poor judgment when over-sharing information on social media. Additionally, employers use social media to screen potential employees, monitor current employees and obtain information about competitors or customers, absent any policy or analysis of the legality of such practices. 

The following are general guidelines to consider regarding social media use in the workplace.

Do: Familiarize yourself with applicable law. In addition to complying with traditional employment laws, it is important to become familiar with some of the laws that specifically affect social media policy. For example, the National Labor Relations Act (NLRA) addresses employee rights in regard to a company’s social media policy. Recent rulings by the National Labor Relations Board (NLRB) further illustrate what a company may or may not do to regulate such activity. Also, new Federal Trade Commission (FTC) guidelines provide regulations for the endorsement of products on social media sites; therefore, if an employee is involved in product endorsement, his or her employer’s social media policy should follow these guidelines. 

Do: Implement a social media policy. A company needs to decide what its position is regarding social media use and where it stands relative to monitoring social media. The company’s position needs to be translated into a written policy and communicated to employees. Absent a policy, a company’s expectations and limitations are unknown to employees, making it difficult for them to conform their behavior accordingly and difficult for a company to discipline an employee for violation of such unofficial policy.

Do:  Protect confidential information. A company’s current policies pertaining to disclosure of trade secrets and confidential information should incorporate parameters regarding acceptable social media use. The casual nature of social media engagement makes it imperative that confidentiality concerns be addressed.

Do: Provide training to key employees. Employees in the capacity of hiring, firing or otherwise managing the activities of other employees should receive training on the social media policy. Because such policies are so new, supervisors and human resource professionals likely need training to ensure legally appropriate compliance and execution of the social media policy. This group of employees may also need to follow additional guidelines to avoid claims of harassment, offensive behavior and discrimination.

Do: Create a monitoring system. Having a policy in place is of little value if a company is not consistently monitoring social media use. Monitoring should be limited to a group of designated employees, and internal policies regarding monitoring should be created. 

Don’t: Gain protected information about an employee. Social networking sites often contain personal information about an individual including age, race, marital status, religious affiliation and political views. This information may be “protected” information that an employer cannot ask about in the hiring process or use as a factor in making a hiring or other employment decision. It is recommended that employers either avoid screening candidates on social media sites or have someone other than the decision-maker review these sites to filter out protected information.

Don’t: Penalize for lawful, off-duty activities. In Minnesota, an employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in the use or enjoyment of lawful consumable products, if the use takes place off employer premises during nonworking hours. Therefore, some updates and pictures on social media sites that reflect drinking, smoking and other lawful activities may reflect poor judgment by an employee, but may not be grounds for refusing employment or taking disciplinary action.

Don’t: Invade employee privacy. Similar to email, unless otherwise indicated in a policy, employees may have a reasonable expectation that their social media engagement is private, and they may take security measures to limit unauthorized access. Absent a written policy, companies should be wary of monitoring employee social media use. Additionally, companies should not take steps to subvert the privacy protections an employee may have implemented.

Don’t: Infringe on protected, concerted activity. Recently, the NLRB held that five employees of a New York social services nonprofit were entitled, under the NLRA, to complain after hours on Facebook about terms and conditions of their employment, including complaints about another worker’s job performance. The NLRA guarantees employees the right to self-organize, to form, join or assist organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A social media policy that is too broad may inadvertently encompass these protected activities. mb