February 08, 2016
This area, and the legal limits and rules applying to it, is rapidly-evolving. Employers are advised to consult with competent legal counsel to tailor a policy that best suits their needs. Following, though, is a list of issues that every employer should consider in drafting a social media policy:
a. When do employees use social media?
b. How do employees access social media?
c. Why do employees access social media?
d. What do employees say and do on social media?
Note that your policy can reach further when your employees access social media at work; by using your equipment; for the purpose of work-related activity; and if what they are saying or posting has a nexus with their employment. However, your policy can (and should) also set some limits on what employees post to social media when they are on their own time, using their own devices.
a. When Do Employees use Social Media?
The threshold question is in some ways the easiest. Will you permit employees to access social media at work, or only during non-work times? If it is not feasible to ban access to social media sites entirely, then the policy should set enforceable limits as to social media use at work. These limits should be similar to limits on personal e-mail and telephone calls – e.g., only on break time, or in a way that does not affect productivity, etc. Acceptable use may vary depending on the employee’s job functions. For example, a marketing employee may have a legitimate business reason to access social media. The policy can, and should, also set some guidelines for social media use when the employee is away from work (see Part D below).
b. How Do Employees Access Social Media?
Even if you elect to ban social media access from your hardware and devices, be aware that employees may also access social media from their own devices while on company time. You have the right to control and monitor how your employees use the devices that you provide; if you permit access to social media, the policy should note that employees have no expectation of privacy as to use on your devices. As far as employees’ personal devices, again, a policy should address how much personal use during the workday is acceptable.
c. Why Do Employees Access Social Media?
Some employees may have a business purpose for using social media. These could include marketing; professional networking; researching adversaries or business associates; and researching potential hires. Your policy should set some guidelines as to
each type of use.
With respect to potential hires, be aware that although social media presents a tempting opportunity to find out more about an applicant than you might learn from an application or even an interview, it carries with it the danger that you will uncover protected information about the individual. For example, disability, age, family status, pregnancy, credit status, or religious views may be prominently displayed on an applicant’s Facebook page. Once you are aware of this information, you are also vulnerable to a charge that you used it to discriminate, both during the hiring process and in later disciplinary actions. Information displayed on Facebook may also trigger more
subtle biases – for example, a potential employer might react differently to a picture of a female carousing with her friends than a similar picture of a male.
Consider the pros and cons of using social media in the recruiting process, and be consistent in whatever you decide to do. If you do elect to use social media sites, be sure to keep copies of pages visited on file to meet the records retention requirement of Title VII of the Civil Rights Act of 1964 and other antidiscrimination laws.
d. What Do Employees Say and Do on Social Media
Sites/Platforms?
The limits an employer may set as to employee expression on social media are still evolving. However, regardless of whether the employee is accessing social media on her own time or on company time, or from personal devices or company devices, the policy should address the following:
(1) Postings Must Adhere to Company Policies
Employees should be reminded not to engage in harassment or discrimination of other employees, clients, etc.; not to disclose confidential or proprietary information; not to disparage clients or members of the employer’s community, such as clients or vendors;
and not to violate any policies regarding giving employment references. It is a good idea to give examples of the sort of postings that would violate company policy.
(2) Postings Must Not Represent the Employer Without Authorization
The policy should prohibit employees from stating or implying that they speak on behalf of the employer. Additionally, the policy should prohibit employees from using employer-related images, logos, etc. without express written permission, if doing so would give the impression that the employer has sanctioned the post.
(3) Postings Should be Legal
If the employee is posting at work, using work-provided equipment, and/or for work purposes, the policy should require that postings be legal. It is a good idea to also offer guidance to employees to the effect that all their social media activity – work related or not – should comport with applicable laws. In other words, postings must adhere to the site’s terms of use, and should not violate any local, State, or Federal laws, including copyright or trademark laws. Additionally, the policy should prohibit posting anything discriminatory, harassing, libelous, or obscene. As above, it is a good idea to give examples of the sort of postings that might be illegal.
(4) Postings Should be Respectful
As discussed further below, a policy can, and should, require employees to be respectful in their postings and to refrain from posting hostile, disparaging, or harassing content. However, employers must be cautious not to restrict employees from posting content that is critical of the employer, or that could damage the employer’s reputation, as such postings might be protected by the National Labor Relations Act (“NLRA”).
(5) The Individual is Responsible for the Post
A social media policy should remind employees that the employer reserves the right to view social media content that is publicly available. While an employer should never use nefarious or dishonest means to access an employee’s social media content, employers should alert employees that if the employer becomes aware of content that runs afoul of the policy, including content that adversely affects the employer’s legitimate business interests, the employer will take disciplinary action.