Some Social Media Policies Are Unlawful

BySamuel Greengard

As organizations wade intosocial media, more and more are discovering that crafting sound and legalpolicies surrounding the use of the technology is a challenge. According to lawfirm Jones Day, the National Labor Relations Board (NLRB) issued an OperationsManagement Memorandum three times in the past year to provide enforcementguidance on employees’ use of social media and employers’ social mediapolicies. A May 30 report ( underscored the importance of having properly drafted socialmedia policies.

The NLRB found that mostpolicies are too broad?and actually unlawful?under the National Labor RelationsAct (NLRA). In fact, the Acting General Counsel (AGC) found that out of 20policies, only four were lawful, Jones Day reports ( The AGC said that employers must not only craft narrowerpolicies, but also provide specific examples and avoid broad disclaimers.

For instance, a statementsuch as: "offensive, demeaning, abusive or inappropriate remarks are asout of place online as they are offline," without providing examples that eliminateambiguity, isn’t acceptable. Instead, the policy should disallow"inappropriate postings that may include discriminatory remarks,harassment, and threats of violence or similar inappropriate or unlawfulconduct," Jones Day notes.

Sharon Toerek, a partner atthe Cleveland law firm of Licata & Toerek and a member of the AmericanAdvertising Federation Board, says that too many companies construct socialmedia policies in a vacuum. "It requires a multidisciplinary approach andas you think about the architecture of your social media policy, you need inputfrom all the various groups within the organization."

What’s more, manyorganizations are used to having a baseline set of policies that encompasshuman resources and intellectual property. These are crucial areas, but thepolicy must go further and "give employees the proper legal tools to usesocial media so that they can be effective in their roles for the companywithout compromising confidential business information," Toerek notes. Thebottom line, she says, is that the policy must clearly define specificbehaviors and actions that aren’t acceptable.

Lisa Zone, a senior vicepresident at the public relations firm Dix & Eaton, helped develop herfirm’s policy. She says that companies must extend policies and training tojunior employees and even to independent contractors (IC), who are oftenentrusted with posting to social media sites.

Moreover, it’s critical todefine 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 contractbetween the organization and the employee or IC?and even address "webs ofrelationships," Toerek says. Typically, she notes, courts have ruled thatemployees control the content of posts, but the company owns the followers orsubscribers.

Finally, it’s essential toanalyze policies regularly?Toerek says that a quarterly review is typicallybest?and examine issues and problems as they arise. "A policy must beunderstandable, livable and breathable," she concludes. "It must bebroad enough to cover the range of events that take place, but specific enoughto deal with real events and situations."