Challenges and Issues in Creating a Social Media Policy

Challenges and Issues in Creating a Social Media Policy

By special guest author Kathy Vanderziel, vice president, senior counsel for The Capital Group Companies, Inc.

As social media use continues worldwide, many companies have implemented a social media policy, or are in the process of doing so. This policy is often unique to the industry in which the company works and careful consideration must be given to new federal and state employment regulations regarding electronic communications.

Kathy Vanderziel, vice president, senior counsel for The Capital Group Companies, Inc., home of the American Funds, spoke with LexisNexis® Advisory regarding the creation of her company’s social media policy and discussed some of the unique challenges that she faced.

“Particularly since we’re in the financial industry, where we’re highly regulated, the revelation of confidential information was our main concern. We were also concerned with ensuring that our associates comply with our various policies, such as the policy against harassment,” she said.

The policy also had to comply with both National Labor Relations Act (NLRA) law, which protects employees’ right to communicate about the terms and conditions of their employment, as well as California law that prohibits an employer from making employment decisions based on out of the office conduct, unless it has an impact on the work environment.

“Our electronic communications policy really focuses on not so much on what our employees can and cannot do, but more on using good judgment,” said Vanderziel.

The policy makes clear that associates of the American Funds cannot reveal confidential information about their mutual funds, shareholders and company associates in a public forum because it is protected under federal law, she said.

“At the same time, we tell our associates that in their off-hours they are free to use electronic media—but we stress that they use good judgment and consider the policies with respect to confidential information and harassment. We also urge them to remember that they might have shareholders of the American Funds, or brokers that deal with the American Funds, in their audience and to consider whether what they’re saying is going to impact their credibility or the credibility of the company. We also try to make sure that they do not attribute their own opinions to the company,” said Vanderziel.

Creating An Electronic Communications Policy

Vanderziel recommends to General Counsel who are looking to create an electronic communications policy for their company to start by looking at some of the recent NLRB commentary and memos on the topic.

“Recently, the NLRB has specifically recognized policies they feel strike the appropriate balance between employee rights and the right of the company to protect its information and its reputation. This is particularly important if you have a unionized work force,” she said.

She also recommended that GCs look to other companies that work in their industry that might have a similar culture to theirs. Many of these companies are now posting their policies on their websites.

Vanderziel stressed that while all employers need to have an electronic communications policy in place for legal reasons, it should also educate employees about what their obligations are and what is and what isn’t appropriate use of social media. She also said that GCs should place special emphasis on educating their managers as well.

“One important point to stress is that they can’t use social media to find reasons to terminate an underperforming employee. I’ve experienced, in my role, that our managers sometimes will think they’re doing the best thing for the company when they find out that their associate is on Facebook® complaining about the terms and conditions of their employment. I have to ask them, how is this impacting the work environment and are they revealing confidential information?” said Vanderziel.

“I think we also have to educate them that they shouldn’t be doing things like friending their direct reports. It’s really dangerous when you’re a Facebook friend with your direct report—I just think it’s too much shared information. As GCs, we need to educate our managers not to act on their instinct to look at this information and judge the actions of their employees outside of work. I think that may be their natural inclination, but it can be very dangerous for a company,” she said.

Kathy Vanderziel is currently Vice President, Senior Counsel for The Capital Group Companies, Inc., home of the American Funds, where she specializes in employment law and litigation management. Prior to joining Capital Group, Ms. Vanderziel was Assistant General Counsel for Dole Food Company, Inc. and a labor and employment associate at the law firm of Gibson, Dunn & Crutcher in Los Angeles.