Is Your Employee Social Media Policy Illegal?
Hopefully you have already taken steps to create an employee social media policy but for those of you who haven’t…there is no time like the present! Stop procrastinating and put it on the top of your “to do” list. For the rest of you, kudos on taking the first step in protecting your company and employees. But having a written policy is only half the battle. Employees are increasingly likely to challenge existing policies if they conflict with privacy, employment or other rights….and courts are striking down illegal social media policies in record numbers. Take this quick quiz to see how you measure up!
Yes/No – It is company policy never to request an employee’s password.
Note – This is a clear violation of the Terms of Service agreement issued by Facebook and similar sites. Instead of violating the privacy of employees, ask your social media manager about the use of alerts or other social intelligence to gather updates about your company and employee communications.
Yes/No – The company places a “gag order” on employee social media communications which could be considered negative or defamatory about the company.
Note – Be very cautious! Recent rulings by the NLRB (National Labor Relations Act) make it abundantly clear that employees have the right to express their personal opinions including the right to “discuss employment terms and conditions publicly or with each other”. If this sounds somewhat vague…well, you are right to a point. It is possible to specify strict guidelines designed to protect a company, partners and other business concerns without violating the rights of employees to express personal opinions or even employment terms. On the other hand, recent litigation concerning an employee’s mention of pending company closure and sales was protected by the court under the employment terms making it important for management to decide when/if something should become public knowledge.
Yes/No – The company prohibits the posting of photographs, music, video’s, quotes or other ip related data and information without express permission.
Note – While this might seem like a common sense approach, it is very vague especially when related to an employee’s personal use of social media. This IS a solid approach to be used internally or if an employee represents the company in an official capacity as mentioned in prior articles surrounding copyright, IP and other related legal issues but cannot restrict an employee from using social media in the way any other average user would.
Yes/No- The company prohibits the mention of public opinions about the workplace, hours, labor conditions, wages or has a blanket statement regarding harm to the image or reputation of the company.
Note – While it may initially appear like each of these could lead to a breach in fiduciary responsibility for investors or partners, limiting employee labor rights is a clear violation of Section 7 of the NLR Act which specifically allows employees the right to unionize, bargain and/or organize.
Yes/No – The company prohibits or restricts “friending” other employees, partners or clients.
Note - Superficially this might sound like a modern day version of a non-compete clause but unless the employer is able to demonstrate competition, limiting or restricting who an employee may associate with is a big “no-no”.
Yes/No – The company disallows employees from talking to the press.
Note – Again, language is imprecise. Remember, employees have a legal right to unionize or organize including speaking to the press. It is imperative to be specific in what limitations are in effect rather than use a blanket statement.
Yes/No – The company uses concise language to specify which rights ARE protected as well as excluded.
Note – Kudos! By now you should have noticed a clear trend, vague or ambiguous language can lead to trouble. This is a case of less being a bit more. Instead of using blanket statements which leave an employer open to potential legal troubles, instead, specify what is to be restricted and what is legally permitted including the right to self organized, form, join or assist labor relations etc in compliance with labor law.
Yes/No – The company has a social media insurance policy in effect. In prior articles we have mentioned the growing adoption of this affordable form of insurance in response to unanticipated liability issues but remember, even the best insurance will not cover deliberate malfeasance nor any illegal policies.
Yes/No – The company uses a standard legal disclaimer and/or has had the employee social media policy reviewed by an expert.
Note – Both are highly advisable. In addition to the social media liability insurance, it’s a great idea to run a social media policy by the experts to make sure there are no illegal clauses, conflicting measures or other erroneous phrases. It’s also beneficial to include a standard disclaimer which recognizes employee rights and leaves the remainder of the policy in effect in the event that one clause is found to be invalid.