"Ways Your Employee Social Media Policy May Violate Federal Law."

Brian Heidelberger has a very interesting article in AdAge.com today title “Ways Your Employee Social Media Policy May Violate Federal Law.”  This is well worth reading. The premise is that “overly-broad rules on social media might violate employee rights.”

This is a hot issue right now. A few weeks ago I attended a forum with HR, risk and compliance leaders from some of the country’s biggest companies, many of which are grappling with the issue of creating a social media policy.

My advice has always been to be specific, simple, and make sure disclosure is included at all levels, whether an employee, vendor, partner, board member, etc: “I work for _______, and this is my personal opinion.” This phrase comes from Word of Mouth author Andy Sernovitz.

The trouble begins when a company starts to design a policy that tries to anticipate everything. You can’t. At this meeting I attended, one of America’s biggest company’s was up to a 300 page guideline. NO ONE on the line will read or remember a 300 page guideline, especially a 17 year old.

Somewhere you need to provide what employees can and can’t do, a set of guidelines, trust, then course correct.

Brian says, “The lack of clarity in advertising law is frustrating, particularly in digital where we are relegated to extrapolating from laws that were often written before the computer was invented and which generally only apply to those using an abacus or, at least, a dial-up modem.

So what do we need to change? Well as a starting point, the NLRB hates those parts of your policy that are ambiguous and overbroad. I’ve seen enough policies to know that yours likely prohibits just about everything under the sun, so at the very least, make sure you add examples to clarify in the policy what’s actually prohibited. 

Does your policy prohibit or restrict “friending” other employees? Workers have the right to communicate with each other. So a statement encouraging employees to “think carefully about ‘friending’ co-workers” was considered illegal.

Does your policy prohibit your employees from posting about the company? Under federal law, employees have the right to criticize their company and how it treats its workers.  Employees also have the right to discuss legal claims they may have against their employer. Workers have the right to discuss wages and conditions of employment with others, and with each other, so a blanket prohibition over talking about co-workers was considered illegal.

Does your policy prohibit posting the company or other’s trademarks, videos and pictures without permission? There very well may be instances where the use of an employer or third party’s intellectual property would be a “fair use” and not an infringement.

Does your policy prohibit talking to the press? Employees have the right to talk to the press in certain labor disputes, so a blanket prohibition over talking to the media was considered illegal.”


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