Aspen Services Group, LLC
Registered Agent, Insurance & Risk Management
Legal Issues with Social Media

            

    It’s not a secret that many recruiters and business owners use social networking sites to screen prospective employees.  But dictating how and when employees use social media can be complicated at best.  When an employee enters an organization they need to understand the rules so a clear social media employment policy is critical.  However, if an employer’s social media policy covers too much ground, disciplining an employee for social networking activity may cause trouble for the employer.

The Social Media Employment Policy

Whether your business is active on social media or not, every organization should recognize that its employees typically are.   Such on-line presence can create risk and benefits for both the employer and the employee. A well written social media policy can be a company's first line of defense to mitigate risk for both the employer and the employee. A social media policy outlines for employees the corporate guidelines or principles of communicating and posting in the online world.The policy should be more about what employees can do and best practices for social media use versus all the things employees can't do on social media. 

Some guidelines to follow when developing such a policy include:

  • State that the policy applies to all social networking websites for both professional and personal use and specifies when, if ever, social media may be used on company time.
  • Internet postings should respect any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company
  • If an employee comments on any aspect of the company's business they must clearly identify themselves as an employee and include a disclaimer like, "the views expressed are mine alone and do not necessarily reflect the views of the company."
  • Internet postings should not include company logos or trademarks without prior company consent and must respect copyright, privacy, financial disclosure, and other applicable laws.
  • Corporate blogs, Facebook pages, Twitter accounts, etc., could require approval when the employee is posting about the company and the industry.
  • That the company reserves the right to request the certain subjects are avoided, withdraw certain posts, and remove inappropriate comments.

National Labor Relations Board

Even with detailed social media policy in place, it should be noted that all employees have certain rights under federal law that social media policies can't compromise.  Ambiguities in most policies as well as overreaching restrictions technically violate the law by potentially restricting these rights. As such, the National Labor Relations Board has issued detailed guidelines on writing social media employment policies that should be carefully reviewed by any organization’s human resources department and legal team before endeavoring to create such a policy.

Social media policies that are too broad have been deemed illegal by various courts throughout the county.  Basically, workers have the right to communicate with each other, to talk about their work environment, utilize social media on their own time, as well as talk about legal claims they may have against an employer.  Even a post completely forbidding the use of any intellectual property may be seen as overreaching, but a “respect all third party intellectual property” clause is lawful.  In implementing such a policy it is important to remind employees to familiarize themselves with their employment agreement and various related policies such as a confidentiality and/or non-compete policy.

The bottom line is due to the recent National Labor Relations Board guidelines, all employers must be careful in designing social media policies that could impact employees’ social media activities, and approach each social media disciplinary issue thoughtfully and individually.

We hope you find this helpful and please let us know if you would like to discuss any of the above at your convenience.  

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