In today’s digitized business and social world, nearly every company has faced – to some degree – the difficult question of how to handle social media in the workplace. This is a particularly hot issue for employers in retail, who often have to balance a desire to leverage social media to advertise with a desire to protect their brand.
While many companies have put some guidelines or general policies into place, these policies are often overbroad and lack practical application. Given that overbroad social media policies are high on the National Labor Relations Board’s enforcement agenda and a current “hot” area for employee lawsuits, 2012 is the time to implement a comprehensive and tailored social media policy.
While every company is different, we have set forth some questions below that you should consider when thinking about what should be included in your Company’s social media policy. Attorneys in Call & Jensen’s Employment Law Group are also readily available to further discuss these issues and assist in the revision of your social media policy.
Julie R. Trotter
Could Your Policy Be Construed To Interfere With Protected Concerted Activity?
• The NLRB has repeatedly found that postings on social media websites may be considered protected concerted activity under Section 7 of the NLRA.
• The following prohibitions in social media policies have been found to interfere with such concerted activity:
o Prohibiting employees from identifying themselves as Company employees.
o Prohibiting employees from making disparaging or inappropriate remarks about the Company or the employee’s supervisor.
o Prohibiting use of the Company’s logo.
o Restricting employee use of social media while on “company time.”
• The NLRB is drawing a line between situations where employees are complaining about the terms and conditions of their employment versus situations where employees are merely airing personal gripes.
• Any “Savings Clause” needs to be carefully drafted to cure any potential chill your Company’s social media policy may have upon Section 7 concerted activity.
Are Your Social Media Guidelines Incorporated Into Your Other Policies?
• Although a stand-alone social media policy is valuable, your social media guidelines should be incorporated in your other policies.
• For example, your sexual harassment training, corporate code of conduct, and confidentiality agreements should cross-reference guidance from your social media policy.
Does Your Policy Have A Grievance Procedure For Co-Workers?
• Just as you have reporting mechanism for employees that feel they are being harassed or discriminated against, your social media policy needs to contain procedures for employees to report potentially improper conduct.
How Do You Communicate Changes In Your Policy?
• Notice of changes in your social media policy should be communicated Company-wide.
• If distributing by e-mail, consider using a return receipt function to document employee acknowledgement that the employee has read and understood the change in policy.
Attorneys in Call & Jensen’s Employment Law Group are happy to assist you or answer questions on these or other issues. Call & Jensen attorneys handle all aspects of employment law on behalf of employers including the defense of lawsuits alleging wage-and-hour, misclassification, sexual harassment, discrimination, retaliation, wrongful termination, and Labor Code claims in single plaintiff and class action matters. Attorneys in the firm’s Employment Law Group may be contacted by email: Julie Trotter, jtrotter@calljensen.com; Virginia Miller, gmiller@calljensen.com; John Egley, jegley@calljensen.com and Jessica Boschee, jboschee@calljensen.com.
