Some Social Media Policies Are Unlawful
By Samuel Greengard
As organizations wade into social media, more and more are discovering that crafting sound and legal policies surrounding the use of the technology is a challenge. According to law firm Jones Day, the National Labor Relations Board (NLRB) issued an Operations Management Memorandum three times in the past year to provide enforcement guidance on employees' use of social media and employers' social media policies. A May 30 report (www.nlrb.gov/publications/operations-management-memos) underscored the importance of having properly drafted social media policies.
The NLRB found that most policies are too broad—and actually unlawful—under the National Labor Relations Act (NLRA). In fact, the Acting General Counsel (AGC) found that out of 20 policies, only four were lawful, Jones Day reports (www.jonesday.com/nlrb_acting_general_counsel). The AGC said that employers must not only craft narrower policies, but also provide specific examples and avoid broad disclaimers.
For instance, a statement such as: "offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline," without providing examples that eliminate ambiguity, isn't acceptable. Instead, the policy should disallow "inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct," Jones Day notes.
Sharon Toerek, a partner at the Cleveland law firm of Licata & Toerek and a member of the American Advertising Federation Board, says that too many companies construct social media policies in a vacuum. "It requires a multidisciplinary approach and as you think about the architecture of your social media policy, you need input from all the various groups within the organization."
What's more, many organizations are used to having a baseline set of policies that encompass human resources and intellectual property. These are crucial areas, but the policy must go further and "give employees the proper legal tools to use social media so that they can be effective in their roles for the company without compromising confidential business information," Toerek notes. The bottom line, she says, is that the policy must clearly define specific behaviors and actions that aren't acceptable.
Lisa Zone, a senior vice president at the public relations firm Dix & Eaton, helped develop her firm's policy. She says that companies must extend policies and training to junior employees and even to independent contractors (IC), who are often entrusted with posting to social media sites.
Moreover, it's critical to define who owns the followers or the actual content for company-owned accounts. In some cases, it might also be necessary to specify ownership in a contract between the organization and the employee or IC—and even address "webs of relationships," Toerek says. Typically, she notes, courts have ruled that employees control the content of posts, but the company owns the followers or subscribers.
Finally, it's essential to analyze policies regularly—Toerek says that a quarterly review is typically best—and examine issues and problems as they arise. "A policy must be understandable, livable and breathable," she concludes. "It must be broad enough to cover the range of events that take place, but specific enough to deal with real events and situations."