[This article is the fourth in a four-part series on social media. Previous articles are “Blocking Employee Use of Social Media? It’s Time to Rethink Why,” “Social Media Policy a Must-Have in 2012” and “How to Make Your Social Media Policy Stick”]
The emergence of social media and the legal issues associated with it in many ways mirrors the impact of the Internet launch. And similar to the workplace invasion of the Internet, many business leaders have jumped to the assumption that employees will only abuse it.
It’s this initial fear that has led many to react harshly and either block, ban or impose significant limitations on social media use.
Laws around social media continue to develop, but companies should use common-sense approaches and have a solid social media policy in place. Two reasons compel all employers to institute a social media policy:
Outlining the company’s expectations for social media use helps the company reap the benefits of these emerging technologies while avoiding potential pitfalls.
Consistently enforcing a clearly drafted social media policy helps employers reduce their exposure to potential liability arising from disciplining and/or terminating employees for inappropriate social media use.
With any policy, there will be people who comply and people who don’t. In a perfect world we would assume employees would use good judgment if given the opportunity to use social media in the workplace, but this simply is not the case. Proper consent must then come into play.
As an employer, the way to deal with highly technical court actions and ensure compliance is to embrace the silver bullet that allows a company to monitor employee use—proper consent. As the devil is in the details, this is a step where companies often seek counsel to ensure that what they are actually monitoring is appropriately covered by their employees’ consents.
Employers should be creative about presenting the policy to employees for their consent. Make it easy to do. A disclaimer could appear on employee computer log-in screens, for instance. Logging in would constitute consent that way. Or it can be sent in an e-mail.
To sum it all up, unlike other issues in your company where you create a policy and meet with or notify your employees once about it, your social media policy is an area you will need to keep on your to-do list. Consider it a living document.
Companies may be tweaking these for a while as we deal with outdated laws, new regulations and politicians with different agendas.
An example of a nuance that’s developed is conflicting laws when it comes to employees speaking on behalf of a company or endorsing something. According to FTC guidelines, you cannot make anonymous posts online when you have a material interest in what you are endorsing. In another area of the law, the National Labor Relations Act is being interpreted to provide the right to speak anonymously and complain about terms and conditions of employment.
This is an example of something that’s developed since the first article in this series was published in November 2011. It’s important to note that policies can comply with both laws in that you can allow an employee to be anonymous if talking about wages and other conditions, but require the employee to disclose his or her company affiliation if discussing products or services directly with consumers.
Stay up to date on new developments and update your social media policy accordingly. Policies, procedures and monitoring are just like the format they are trying to comply withâ€•social mediaâ€•which is always evolving.
Matthew Deffebach is a partner in the Labor and Employment Practice in the Houston office of Haynes and Boone, LLP. He is also a member of the firm’s new Social Media Practice. Matthew can be reached at firstname.lastname@example.org.