Every business that uses social media must have policies and procedures to ensure that employees use social media responsibly. But oftentimes companies create policies that are vague, ambiguous, and violate the law. Over the years, our social media attorneys have reviewed hundreds of policies relating to social media and have found that the key difference between good ones – and not-so-good ones – are how specific their rules are at zeroing in on the company’s most significant legal risks.
In other words, the more specific your policy can be the better. This makes sense: a policy with specific rules lets employees know exactly what they can or cannot do on social media. By crafting your social media policies carefully, you often put more thought into exactly why this procedure exists in the first place – and therefore craft a preventative measure that truly meets your business goals. And if that wasn’t reason enough, social media policies that lack specificity may be unenforceable – or even worse – unlawful under the National Labor Relations Act.
Here’s are some tips on how you can prepare an enforceable social media policy with specific rules:
Generally, speaking, rules that clarify their scope by including examples of what is allowed and what is not allowed are more likely to be followed by employees and upheld if a dispute ever arises. By providing a list of specific examples of unacceptable behavior, statements, and activities, employee can easily delineate between conduct that is prohibited and that which is permitted.
For context, a work rule that prohibits “posting inappropriate content on social media” would likely be too vague, because what one employee may find inappropriate may be different from another. To help employees understand what this rule means, consider providing examples of what you mean by “inappropriate.” For example, “inappropriate postings may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” By providing specific examples of what the you mean by “inappropriate postings,” a reasonable employee would understand that the work rule is designed to prohibit specific types unlawful conduct and not personal or work-related conduct that may be allowable under United States labor laws.
One common problem that employers face when drafting social media policies is the line between confidential information and trade secrets. If your policy prohibits the “disclosure of confidential information,” you may run afoul with the National Labor Relations Act because it is unclear what you mean by “confidential” information. An employee may reasonably believe this extends to talking about their pay, benefits, or workplace problems – each of which are protected discussions under federal law in some circumstances.
The better practice would be to forbid employees from trade secrets or other proprietary confidential information, which you can reasonably define as information about unreleased products, sales, market-share information, financial forecasts, customer lists, client lists, and research and development initiatives. By including examples of what you mean by key terms such as “confidential information,” you can alleviate potential confusion and make sure you policies are followed.
There is nothing more frustrating than having a social media policy in place, but have it miss key terms that could have protected you before an incident arises. It’s therefore important to make sure all your risks are covered within your social media policies so that you won’t be blindsided when they arise. To help you know your risks, you may benefit having an attorney conduct a social media risk assessment. The assessment will serve as an audit of your company and employees’ unique social media activities, an evaluation of the laws that apply to your social media use, and a report on your most critical areas of risk. Uncovering these risks will enable you to develop the right policies and procedures to protect yourself before a legal incident arises.
