Can your employee social media policy stand up to court challenges?

jimdeane / Foter / CC BY-NC-ND

Social media policies have been tested in several recent high-profile cases. The case of Andrew Goldman, a freelance columnist for the New York Times Magazine, is almost notorious now. Goldman was suspended from the magazine for tweets to author Jennifer Weiner that were considered profane and sexist.

It’s hard to look away when such a venerable brand undergoes a minor disaster, and the issue has been discussed at length. Over at the Harvard Business Review blogs, Alexandra Samuel ponders whether or not an organization should have such a broad and vague social media policy as the Times does. After all, they claim that it isn’t even written down.

It turns out that such policies may not just be misguided, they may be illegal. In two recent court decisions, the National Labor Relations Board (NLRB) set precedents for what constitutes a legal social media policy. I’m certainly not a lawyer, but I’ll do my best to lay out the basics as it pertains to social media and PR professionals.

Protected and concerted

The first case concerned another major brand — Costco Wholesale. Part of a larger challenge of Costco’s employee handbook by UFCW Local 371, this case dubbed certain provisions against social media usage unlawful. In particular, the ruling stated that Costco cannot prohibit employees from posting “unauthorized” material while on company property. Also, the company’s employee handbook included broad statements prohibiting employees from using social media to discuss and debate pay, sick leave and what they thought about the company. Such prohibitions are apparently illegal under that National Labor Relations Act (NLRA), because such conversations (online or off) are considered “protected and concerted.”

The judge’s decision in the second case was a bit more nuanced. This case concerned a salesman at a car dealership who had been fired after posting two unflattering items about his employer. In the first, he posted a photo with a caption that criticized the dealership’s choice of food for an event, which led to subsequent comments by other employees. The judge deemed this discussion protected under the NLRA, and also understood that this was not why he was fired.

In another set of posts the same day, the salesman posted a photo of and sarcastic comments about a car accident at the neighboring car lot. He was apparently fired for the second set, which did not fall under the protection of the NLRA.

Still, in another case, the dealership was ordered to remove unlawful rules from its social media policy. The policy was deemed too broad and restrictive of employee communications, particularly where it concerned “courteous” language and not damaging the reputation of the dealership.

What’s in your social media policy?

Is this making you panic yet? After all, it seems that most social media policies list rules about not discussing sensitive issues like payroll or anything that will hurt the company’s image. Apparently, under the NLRA, this is illegal. Employees have a right to discuss hours, pay and other employment-related issues. And in both of these cases above, employers got in trouble with policies that were too broad and could be construed to restrict such “protected and concerted” discussions.

However, employers can ask that their employees follow appropriate laws when using social media. Posts that clearly constitute harassment and bullying are never okay and should never be condoned. Furthermore, employees must heed industry-specific laws when discussing their work online. This has been tested many times in the medical professions. Nurses and doctors have both been fired for posts that violate the privacy provisions of HIPAA. Financial sector employees can also be fired for violating industry-specific laws — and they may also face massive fines, as the recent case of a Citigroup analyst demonstrates.

Clearly, this is a far more complex issue than most business owners realize. So how do you write an enforceable, reasonable and legal social media policy? Here are five starting points:

  1. Start with your existing employee handbook and laws governing your industry. This will ensure that social media policies are consistent with current workplace culture and regulations.
  2. Engage employees in the process. Recruit employees who are active on social media to be involved in the development process. Provide social media training for everyone, to make sure that less tech-savvy employees understand enough to follow policies competently.
  3. Engage your lawyer in the process. This should go without saying, but not enough small businesses heed this advice.
  4. Keep your policy narrow. If the above examples tell us anything, it is that employers must be very specific about what behaviors are prohibited.
  5. Don’t put all your eggs in one basket. New social networks emerge and gain significant traction quite frequently. Do not base your entire policy around Facebook and Twitter.

For more information on developing quality social media policies Inc. has a great article, and Socialmedia.biz has an excellent guide. From where I sit, it seems a good place to begin is to encourage your employees to be safe, savvy and engaged participants in the social media sphere. Didactic, restrictive policies won’t necessarily protect your business or foster positive use of social media among your employees.

Photo credit: jimdeane / Foter / CC BY-NC-ND

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