Sunday, November 20, 2011

Sustainable Business Practices and Social Media Policies

One of the leading trends in sustainable business practices is the “paperless” office.  Given this preference for paperless, it is not surprising the owners of sustainable business are making substantial investments in technology, and can expect to have tech savvy employees who maintain a consistent and thorough electronic persona using social media resources like Facebook, YouTube, Twitter, LinkedIn, and Blogger – to name a few.

This means that in addition to the normal panoply of employee policies, sustainable business are going to need a “Social Media” policy – that is, a policy that defines when and how employees can use social media.  An example of a social media policy might be, “Employees are prohibited from using employer’s computers to access social media websites, and are prohibited from referring to the employer in any private use of social media web sites.

These policies the equivalent of a hidden pit lined with pointy sticks.  This is because they implicate employee privacy rights, free speech rights, and an employee’s right to engage in “concerted activity.”  (Department of Legal De-Mystification: “Concerted activity” is a phrase drawn from the National Labor Relations Act.  In broad, general strokes, it refers to an employee’s right to organize and to air grievances regarding the workplace.)

The first, and perhaps most important rule of social media policies is that best policies are narrowly drawn.  Here are some examples of policies found to be overbroad and unenforceable: 
  • A policy prohibiting “inappropriate discussions about the company, management, and/or coworkers.”
  • A policy prohibiting “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent.”
  • A policy prohibiting social media posts constituting “embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member.”
  • A policy prohibiting employees from “making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors.”
  • A policy prohibiting disclosure of “inappropriate or sensitive information” about the employer.
  • A policy prohibiting “using the company name, address, or [similar] information” on the employee’s social media profile.
  • A policy prohibiting use of “the Employer’s logos and photographs of the Employer’s store, brand, or product, without written authorization.”
  • A policy prohibiting employees from “posting pictures of themselves in any media . . . which depict the Company in any way, including company uniform [or] corporate logo.”

So what can an employer prohibit?  The answer lies less in substance of the prohibition, but in the way in which it is communicated.  This leads to the second rule of social media policies: if you are an employer covered by the National Labor Relations Act, then your policy must inform employees that it does not prohibit criticism of workplace conditions or of the terms and conditions of employment and does not otherwise prohibit conduct protected under the National Labor Relations Act.

One good measure of whether a social media policy is overbroad is whether it subjects the employer to the temptation of disparate enforcement.  If the policy is so broad that if enforced all employees would be in violation, it is probably overbroad.  Likewise, if you, as the employer, are tempted to enforce the policy against one employee but not another, your policy is probably overbroad.

A corollary of the second rule is that social media policies should state and emphasize the legitimate business objectives that they seek to achieve.  Consider the following business justifications for limiting employee conduct through social media:
  • Preventing and protecting employees from harassment and discrimination
  • Protecting company confidential and proprietary information, including trade secrets, IP systems, and proprietary processes
  • Protecting a company’s goodwill and reputation
  • Prohibiting illegal conduct, including slanderous or libelous content

A social media policy accompanied by a “Purpose Statement” making plain that the policy is intended to achieve some or all of these objectives is much more likely to pass muster.

What about using employee social media postings as the basis for an adverse employment decision?  This gives us a fourth rule of social media policies, which is that employee posts that are made on the employee’s (as opposed to the employer’s) social media page, outside of working hours, and using private equipment, that refer to the employer or workplace, and are either aimed at or involve multiple employees are most likely protected and should not be used as the basis for either disciplinary action or termination.

One problem with social media is that employees can, and usually will, say just about anything online.  As a result, and not surprisingly, employers are generally tempted to use a social media policy as a sort of “do right rule” – that is, as a tool for getting the employee to use good judgment and to simply “act right.”  This leads to a fifth rule of social media policies: every social media policy should be accompanied by a set of guidelines that encourage employee behavior valued by the employer.  An example would be a guideline that encourages employees to be professional, polite, honest, and respectful in social media postings.  Such a guideline avoids the risk of an overbroad post while at the same time putting the employee on notice of the employer’s expectations.

A sixth, and, for the purposes of this post, final rule of social media policies is to that the policy should be publicly available on the employer’s website.  This is another means of clearly communicating the employer’s values, and it protects the employer from being attacked for enforcing a secret policy. 

This post is not intended to cover the waterfront regarding social media policies. Consider that at one time – albeit a time that now seems to have been shortly after the invention of dirt – employers did not have anti-harassment or anti-discrimination policies.  Now they are commonplace.  We are at a similar point in the evolution of social media policies, and the law regarding social media policies is evolving so quickly that employers must proceed, but with caution.  That leads to a final point, which I make at the risk of invoking the Attorney’s Full Employment Act: avoid “form” or “stock” policies.  Every employer is different, and every employer is going to have a different set of needs and justifications for a policy.  

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