The Internet has been abuzz with warnings that every company should have a written Social Media policy. These warnings have more recently been followed by equally compelling, but contradictory advice that Social Media policies are not worth the time and money, and aren’t enforceable anyway. So what's a mindful company trying to do the right thing, to do?
A Social Media policy is a written policy for employees that defines how and when they can participate in discussions about the company’s business or brands on social media sites.
So what's a mindful company trying to do the right thing, to do?
The impetus for the fodder regarding the need for a written Social Media policy resulted after the National Labor Relations Board (NLRB) released reports analyzing several Social Media policies to determine whether they violated various state and federal laws. At issue, for example, are the First Amendment, the Civil Rights Act, and Section 7 of the National Labor Relations Act, each of which prevent many limitations that a company might want to impose on an employee’s social media participation.
However, the NLRB’s social media policy input has turned out to be more of a deterrent to even having a policy at all, since its advice to limit use of certain provisions makes the boundaries of appropriate employee and employer behavior even less clear — exposing both to potential employment-related litigation.
What Is Section 7?
Section 7 of the National Labor Relations Act (NLRA) provides employees the right to voice complaints about their employment and/or employer, such as terms and condition of employment, wages, and labor practices. When drafting a written policy, the brand owner must avoid violating Section 7 of the NLRA since the Social Media policy could well be found to chill the exercise of employees’ legal rights (to gripe, to strike, to petition for help, etc.).
Why Have a Written Social Media Policy?
As employees’ use of social media in the workplace increases, employers’ concerns are heightened. Employers are, in turn, rushing to draft policies and rules addressing the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, and intellectual property, to address these concerns. The well-intentioned employer may also want to give employees proper guidance on how to best use social media sites when commenting on Company matters and brands, without fear of termination of their employment.
Three Things to Avoid in Writing a Social Media Policy:
When drafting a policy, be sure to follow NLRB guidelines. An employer should avoid:
- the use of broad or vague terms (such as “inappropriate”);
- including overly broad prohibitions of conduct (avoid using words such as “never”);
- requiring employer pre-approval of all content posted on social media sites by employees.
Instead, focus on using clear specific language coupled with disclaimers to exclude section 7 protected activities. To review an NLRB-approved Social Media policy with commentary to assist in creating an effective and legally acceptable Social Media policy, check out the Brand Owner’s Survival Kit.
Should You Skip Drafting a Social Media Policy?
Some people consider having a Social Media policy to be a waste of time because of the policing efforts required to enforce them and the countless scenarios that could arise, but not be foreseen at the time of drafting. The marketing blog, Hubpost, contends that “you don’t want to end up slowing down your publishing frequency, since speed counts on social media more than in other channel.” So if content is king at your company, you don’t want to deter employees from publishing content efficiently. Further, based on recent (and strict) NLRB policy reviews, your policy is likely to get rejected on the grounds of violating a law such as Section 7 and be unenforceable anyway.
So What Should You Do?
Weigh the pros and cons. It is desirable to provide both your company and its employees guidance, clarity, and security. Be mindful about what you can and cannot control about the dissemination of internal company matters. Do you want your employees to know how much freedom they actually have to rant about your company online? How much time and money is that worth to you? Are you willing to invest in researching and updating the policy once written?
Most companies should have some minimal policy in place, even if it’s an email to employees reminding them to use good judgment on social media sites and to remember to protect confidential information (such as trade secrets) of the company.