Drafting Advice: Developing Social Media Policies

By: Joseph Domenick Guarino, DLA Piper

LEXIS PRACTICE ADVISOR RESEARCH PATH: Labor & Employment > Privacy, Technology, and Social Media > Navigating Social Media > Practice Notes > Developing Social Media Polices

Social media platforms enable users to share ideas and exchange information in a highly effective manner. However, the use of social media by employees carries potential legal risks. These risks include the unauthorized disclosure of confidential and proprietary information, embarrassment stemming from an employee’s online words or actions, and claims for unlawful discrimination and harassment for which an employer who is on notice may be held liable.

CONSEQUENTLY, ALL EMPLOYERS SHOULD CONSIDER including within their handbooks a social media policy that establishes rules and guidelines for communicating information relating to the company via social media. Additionally, you should advise employers to distribute

their Social Media Policy as a standalone policy with its own acknowledgement form. This will underscore the importance of the policy to employees and, in the event of litigation, facilitate the employer’s ability to prove that the employee knew of the policy’s strictures.

In drafting a social media policy, you should consider the following:

• Define social media broadly. Given the rapid pace at which online communication platforms are being created and improved, a good social media policy should define social media broadly so that the policy does not become outdated shortly after its distribution.
• Reiterate that company policies apply to online conduct. Remind employees that policies, including EEO and confidentiality policies, apply to employees’ social media activity. Further, you should detail the type of posts that the company prohibits (such as threatening or obscene posts). Invoking other policies in conjunction with specific provisions of the Social Media Policy can also lend specificity to its terms. The National Labor Relations Board (NLRB) has found vague policies unlawful because employees may interpret them as infringing upon their rights under section 7 of the National Labor Relations Act (NLRA). When incorporating any other policies by reference, however, make sure that they are themselves current and lawful.
• Address work usage. Inform employees whether they are permitted to access social media at work and under what circumstances.
• Protect intellectual property and proprietary and confidential information. The NLRB will scrutinize provisions that limit employees’ disclosure or use of intellectual property and confidential information, so such provisions should be carefully tailored. With respect to intellectual property, the policy should inform employees about intellectual property rights and encourage them to abide by relevant legal requirements. The company may also ban employees from using the company’s intellectual property for any business purpose without the company’s permission. With respect to confidentiality provisions, be specific about the type of information covered and do not define confidential and proprietary information to include wages or other information related to the terms and conditions of employment.
• Distance company from employee. People often say or do things online that they would not say or do in an offline setting. To reduce the risk that a company will be faulted for employees’ bad behavior online, you should advise employees that they may not state the Company has authorized them to speak on the Company’s behalf unless they receive prior written authorization. You should also prohibit employees from advertising or selling the Company’s products without such authorization.
• Consider FTC guidelines regarding endorsements. Furthermore, under the Federal Trade Commission’s guidelines, an individual who gives endorsements or testimonials about a company’s services or products must identify his or her relationship to the company. See 16 C.F.R. § 255.0 et seq. Thus, you should recommend that the employer state in its social media policy that when an employee posts about the c its affiliates.
• Consider employees’ privacy rights. The social media guidelines that you establish in the handbook must balance the legitimate business interests the employer seeks to protect with employees’ privacy rights. You should ensure that employees have no expectation of privacy in publicly available social media postings. On the flip side, you should prohibit managers from “friending” subordinates on non- professional social media sites since that can be construed as the employer intruding on employee privacy. (Relatedly, you should advise employers not to seek to gain unauthorized access to their employees’ social media accounts and not to request employees’ social media passwords in the several jurisdictions which outlaw such conduct.)
• Consider employees’ NLRA section 7 rights. Section 7 of the NLRA endows employees with the rights to organize, bargain collectively through chosen representatives, and engage in concerted activity for collective bargaining or other mutual aid of protection. Section 7 has been interpreted to endow employees with the right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such photographs and make such recordings at least on non-work time. The NLRB devotes considerable attention to the social media policies of all employers (with unionized and nonunionized workforces) to determine whether they impinge, or could be construed to impinge, on employees’ section 7 rights. Therefore, you should ensure that the social media rules and guidelines do not interfere with, among other things, employees’ right to organize, express their personal opinions, or communicate on their own (or other employees’) behalf about the terms and conditions of employment. Include language that disclaims the policy’s intent to interfere with employees’ rights under federal and state laws, including the NLRA.

Sample Social Media Policy

The Company recognizes that Internet-provided social media can be a highly effective tool for sharing ideas and exchanging information. However, the Company also seeks to ensure that social media usage serves its need to maintain its brand identity and integrity while minimizing actual or potential legal risks. The Company therefore establishes the following rules and guidelines for communicating employer information via social media. Violation of this policy may lead to disciplinary action up to and including termination of employment.

The Company defines “social media” broadly to include online platforms that facilitate activities such as professional or social networking, posting commentary or opinions, ands haring pictures, audio, video, or other content. “Social media” includes personal websites and all types of online communities (e.g., Facebook, LinkedIn, Yelp, YouTube, Twitter, Instagram, blogs, message boards, and chat rooms).

• Your social media activity is covered by all Company policies including, among others, the Company’s EEO, No Harassment, Confidentiality, and Internet policies.
• You should not post content on social media that violates the Company’s discrimination or harassment policies, or that is threatening or obscene.
• You may use social media for non-business purposes while at work, but only if (i) you are complying with all company policies, (ii) the activity does not interfere with your work or your coworkers’ work, and (iii) you only use social media for an insignificant portion of your work day.
• You should not represent that the Company has authorized you to speak on behalf of the Company or that the Company has approved your message, unless you receive prior written authorization to do so from the Company [or insert title of employee who can give approval]. If you do not receive written authorization to speak on behalf of the Company, you are strongly encouraged to state explicitly, clearly, and in a prominent place on the site that views expressed are the employee’s own and not those of the Company or of any person or organization affiliated or doing business with the Company. Should you decide to make social media postings about the Company’s services or products, you must expressly state in your postings that you are an employee of the Company and that your views are not necessarily those of the Company or its affiliates.
• You may not illegally disparage the Company’s products/ services, or the Company’s vendors’ or competitors’ products/services. This means that you may not intentionally make maliciously false statements that denigrate the Company’s products/services, or the Company’s vendors’ or competitors’ products/services.
• You should not advertise or sell Company products via social media without the prior written approval from the Company [or insert title of employee who can give approval].
• The Company protects its copyrights, trademarks, and logos. You should respect the laws regarding copyrights, trademarks, rights of publicity, and other third-party rights. To minimize the risk of a copyright violation, you should reference to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on Company logos, brand names, taglines, slogans, or other trademarks. You may not use the Company’s (or any of its affiliated entities’) logos, brand names, taglines, slogans, or other trademarks or other protected information or property for any business/commercial venture without the Company’s Legal Department’s [or insert title of employee who can give approval]
• The Company protects its premises and processes. You should not record audio/video or take pictures of non-public areas of the Company’s premises or of the Company’s processes and display such content through social media without prior written approval from the Company [or insert title of employee who can give approval]. An exception to this rule would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures or making recordings of health, safety, and/or working condition concerns, or of strike, protest, or work- related issues, or other protected concerted activities.
• You should not display or post video or other images of, or material about, the Company’s employees that are libelous, proprietary, harassing, bullying, discriminatory, retaliatory, or that can create a hostile work environment. Such conduct that would not be permissible in the workplace is not permissible between or among employees online, even if done during non-work hours and away from the workplace on personal devices or home computers.
• You should not display or post video or other images of, or material about, the Company’s competitors, vendors, or customers without prior written approval from the Company [or insert title of employee who can give approval]. Under no circumstances may you post the Company’s competitors’, vendors’, or customers’ personally identifying information, such as social security numbers, credit card numbers, or phone numbers.
• Managers should not “friend” subordinate employees on non-professional social media sites.

The Company reserves the right to (and does) use software and search tools to monitor comments or discussions about it, its representatives, its products, its vendors and its competitors that are posted anywhere on the Internet, including social media.

The Company respects your right to communicate on your own (or other employees’) behalf concerning terms and conditions of employment. Nothing in this policy is intended to interfere with your rights under federal and state laws, including the National Labor Relations Act, nor will the Company construe this policy in a way that limits such rights.

Joseph Domenick Guarino is a partner in DLA Piper’s Short Hills, New Jersey office. Assistance provided by Erin Carney D’Angelo (of counsel) and Dianne Rose LaRocca (associate) of DLA Piper’s New York City office.

LEXIS PRACTICE ADVISOR RESEARCH PATH: Labor & Employment > Privacy, Technology, and Social Media > Navigating Social Media > Practice Notes > Developing Social Media Polices