Let’s face it: it’s beginning to look like this “social media” thing might be here to stay. Facebook is celebrating its tenth anniversary in 2014 and, largely due to its immense popularity, other sites such as Twitter, LinkedIn, Instagram and many others have exploded in popularity in recent years.
If you are a business owner, this is both good news and bad news. The good news is that you can reach a vast audience to promote your business with a simple tweet or Facebook post. (How’s this for vast: as of December 31, 2013, Facebook alone had over 1.23 billion monthly active users. Yes, that’s billion, with a “b”. http://newsroom.fb.com/Key-Facts.) The bad news is that your employees can deliberately or inadvertently use the same channels to reveal confidential or proprietary information or to post disparaging remarks about you or your business, products, services or customers.
The solution: a social media policy. Just like any other policy of your business, such as your vacation policy, your sick leave policy, your disciplinary policy, etc., a well-drafted and evenly applied social media policy helps you manage your employees’ use of social media. However, unlike most other policies of your business, there are much narrower limits as to how far you can go to restrict your employees’ use of social media.
So what does a good social media policy look like? Here are some do’s and don’ts of workplace social media policies:
Put it in writing. As with any company policy, the best ones are clearly written, understandable, and preferably acknowledged by the signature of the employee. If you have an employee handbook, the social media policy should be in there right along with your other company policies. If you don’t have an employee handbook, this would be an excellent time to get one.
Make it clear and objective. As with any other company policy, if your social media policy is overly subjective in what is deemed to be a violation, it leaves too much room for interpretation and becomes very hard to enforce. Make it very clear what is and is not a violation so there is no room for debate over what is allowed. Provide specific examples of prohibited conduct and unacceptable behavior. Carefully define the kinds of “confidential” and “proprietary” information that may not be revealed.
Make it part of a larger policy regarding the use of company time and equipment. The best social media policies are part of a broader policy regarding the employee’s use of company time or equipment. Such as, for example, a policy restricting an employee’s use of company computers to access social media for personal purposes, or a policy restricting an employee from using his or her own device during hours when he or she is expected to be working. There are some very hard limits to how far you can go in regulating what an employee can say (more on that below), but employers are well within their rights to require employees to be working during work hours and using company equipment only for company purposes. Make it clear that the company reserves the right to monitor usage of company equipment.
Enforce it consistently. Even the best company policies will be found to be unenforceable by the courts if you selectively apply them against certain employees while turning a blind eye to other employees.
Unreasonably restrict an employee’s right to free speech. Courts have consistently held that statements made on social media sites are protected speech, like any other type of speech, and subject to the same limits (i.e. libel, slander, defamation, hate speech, etc.) So while a policy can prohibit your employees from posting confidential and proprietary trade secret information, a policy cannot prohibit an employee from posting. That is why it is always best to do this under a broader category of visiting social media sites on company time or equipment.
Unreasonably restrict an employee’s right to engage in collective bargaining activities. In an interesting twist, courts have recently held that overly restrictive social media policies infringe on employees’ “right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection” provided in Section 7 of the National Labor Relations Act. For an excellent article on this please see http://www.isba.org/ibj/2014/01/workplacesocialmediapoliciesthatwor.
Require employees to provide their passwords to social media sites. As previously reported in January 17, 2013 (https://www.robinsonpayne.com/illinois-amends-right-to-privacy-in-the-workplace/), it is unlawful for an employer to require its employees to divulge their social media passwords. While it is good practice to periodically monitor the social media to see what your employees are saying and doing publicly, you may not require them to provide passwords to enable you to monitor the more private areas. Your ability to monitor is limited to the information about that individual that can be accessed by the general public.
If you have any questions about any of this, need help in creating an employee handbook or would like a review of your existing policies, feel free to speak with one of our attorneys.