If I’ve seen it once, I’ve seen it a hundred times. A company has the foresight to implement a social media policy that is designed to protect their business from liability arising from their employees’ social media use… but their policy includes unlawful rules that create serious legal risk.
Our social media lawyers have audited numerous social media policies with an eye for uncovering unlawful rules to help save companies from dangerous risks. In this blog, we shed light on three common, but critical mistakes companies make when writing their social media policies:
Employees have a right under federal law to utilize the company name and logo while engaging in protected speech under federal labor law, such as on electronic leaflets, cartoons, or picket signs in connection with a protest involving the terms and conditions of employment. Thus, a rule within a social media policy that prohibits employees from “using the company logo without permission” or “posting pictures of themselves in any online media which depict the company in any way, including a company uniform or logo” would have serious consequences. On the other hand, companies can require employees seek permission to use the company logo when promoting products or services. This is because the company has an interest in making sure a brand is used properly for marketing purposes, which has no connection protected speech for workplace-related issues.
Some companies implement a broad social media policy that would prohibit any potential negative or harmful social media posts posts from employees. But this could be a big mistake. Overly restricting employee use of social media could not only decrease employee morale, but could also the company to legal liability for chilling its employees’ rights under federal law. For example, a work rule that states “Personal use of social media is never permitted on work property” is most likely an overly restrictive policy that would violate an employee’s right to discuss the terms and conditions of employment with other employees on non-work time in non-work areas. It is a far better practice to be as specific as possible when drafting your rules so that you can protect your company from harm, without overstepping your boundaries.
Companies commonly insert a “savings clause” at the beginning or end of their social media policy. A savings clause commonly looks like this: “This policy is not to be interpreted so as to interfere with employee rights to self-organize, form, join, or to engage in other concerted activities.” In other words, it says “Ignore any unlawful work rules in this policy and assume that we are not violating your rights.” Clauses of this nature are never a good idea.
The National Labor Relations Board has consistently determined that a savings clause of this nature is insufficient to cure ambiguities and over broad rules within an employer’s social media policies. The exception to this rule is when a companies uses limiting language within specific work rules to avoid any ambiguity. For example, a rule that states “Employees may not share trade secrets, customer lists, or other confidential information on social media; however, the prohibition against sharing confidential information does not extend to protected activities under federal labor laws.” In this instance, the specific-savings clause tied to the work rule helps to clear up an ambiguity, as opposed to the more general clause that is intended to apply to every rule within a social media policy.
Running a business without conducting a social media risk assessment. Companies that use social media, especially ones in regulated industries, need to know whether they are exposed to social media legal risk. Without understanding the laws that apply to your business or employees social media use, it is difficult (if not impossible) to craft policies and procedures that could prevent expensive mistakes from arising. Conducting a social media audit of your business and its policies will help you to avoid the common (and critical) mistakes discussed above, and many others that could damage or destroy your business.
