Posted by: johnocunningham | November 5, 2014

Crafting Social Media Policies

With more companies and employees using social media every single day, the importance of having a well-crafted social media policy is growing.

The number of cases filed with civil courts and the National Labor Relations Board is also growing, and the holdings in those cases influence the way in which good policies must be crafted.

Some people do not realize that the NLRB pronouncements related to social media under the National Labor Relations Act are applicable to just about all private sector workplaces, regardless of whether they have a union presence.

Under the NLRA, employee communications about “workplace conditions” are generally protected, especially if they are part of “concerted activity” for the purpose of either collective bargaining or “other mutual aid or protection.”

Using these standards, the NLRB has ruled that a Costco social media policy could not prohibit “postings that damage the company… or any person’s reputation,” and a GM policy could not prohibit “offensive, demeaning or inappropriate” use of social media.

Unfortunately, the legal minefield in this area has become so intricate that companies really must have their social media policies reviewed by experienced labor counsel in order to avoid unintended liabilities.

Of course, any company or professional services firm can and should come up with their own first draft of a policy, so that reviewing counsel can see the goals that the drafters hope to achieve. Counsel can always narrow the language to accomplish those goals, or nearly accomplish them with less treacherous wording. For instance, communications that consist of threats of violence, harassment or disclosure of trade secrets or intellectual property can be prohibited. Similarly, an employer might consider prohibiting specific types of potentially damaging posts that “are not posted for the purpose of collective bargaining or other mutual aid or protection.”

Organizations should also consider publishing notice of any ways in which management monitors social media or company devices on which social media is used, which can have a deterrent effect, as well as serving a due process purpose.

And, of course, employers should consider following the examples of IBM and other leading technology companies that actually use their social media policies to encourage the use of social media for work-related purposes, spelling out many of the positive ways in which social media can and should be used to accomplish organizational objectives.

It might even be wise to appoint a social media policy director who can answer any questions that employees have about effective and fair use of social media.

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