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Social Media Meets Corporate Ethics and the Law - Part II

Apr 08, 2011

John W. of Casper asks, “As my company increases our use of social media as a marketing strategy, I find myself encouraging my employees to participate on social media sites as a work activity.  How do I determine what is ethical in terms of how employee time is spent online and what is expressed?”


Social Media Policies

Originally, I did quite a bit of research to concoct a set of general social media policies that businesses could use.  Due to events on February 7; however, I have discovered that my list is probably not the safest route for a business to go.  Some background . . . in November 2010, the National Labor Relations Board (NLRB) announced their plan to prosecute a complaint regarding the termination of a union employee who posted negative remarks about her supervisor on her personal Facebook page, using her personal computer. 


The National Labor Relations Act (NLRA) protects both union and non-union employees against discrimination based on either union-related activity or group action, defined as “protected concerted activity.”  Under the NLRA, employees have the right to engage in protected, concerted activity, which can include discussions, meetings, or even a single employee discussing the personal character of a supervisor. 


The complaint alleged that the employer had overly broad and restrictive policies regarding blogging and Internet posting by employees on personal time.  The negative comment the employee posted about her supervisor elicited supportive responses from her co-workers and resulted in further negative comments. The company fired the employee, stating that her postings violated the company’s Internet policies. The NLRB determined that the employer violated Section 7 of the NLRA because the Facebook postings could be defined as “concerted activity.”  Section 7 restricts employers from interfering with employees’ efforts to work together to improve the terms and conditions of their workplace and employment. 


Thus, I had to delete my policies in fear that they might violate this law.  In place of the policies, I have to warn you to be careful that your employment policies do not impinge on the rights of your employees to act in concert and do not prevent employees from acting to effect positive workplace change.  The ruling does not prohibit employers from having social media or Internet policies, but does invalidate this particular employer’s policies. Another decision by the NLRB in December found that a similar provision in Sear’s social media policies was legal. 


What businesses do need to consider in creating social media policies is the fact that social networking is communication, and thus policies regarding company use of social media channels should be integrated with a company’s existing communications networks and goals, both internal and external.  Also consider what the desired relationship is going to be between your company and these social media sites.  How do you want to utilize social media to promote your company?  Do you want to be proactive or reactive? 


Businesses can prohibit conduct that is clearly not protected under the NLRA.  An employer may restrict communications that disclose company proprietary information, sexual references, criticism of race or religion, obscenity, profanity or other inappropriate language, and references to illegal drugs or other illegal acts.  Employers must be careful that policies are not overly broad, however.  A good idea is to include language that expressly states that your social media policy is not intended to restrict protected communications, but to minimize risk to the company.   


Bottom line . . . have an attorney take a look at your policies before instituting them, as there is currently a fine line between the interpretation of what is legal and what is not legal. And, before taking any negative employment action against an employee based on social media use, consult an attorney to determine whether those actions are legally protected.  State laws vary in this area, and there are also whistleblower laws that protect employees in some situations. 


Tips to Make Life Easier

Don’t delegate your company’s social media efforts to an intern or new employee who cannot possibly accurately represent your company brand and culture.


If your company has a Twitter account, Facebook page, or is registered with other social media outlets, the company needs to assure that the ownership of these accounts belongs to the company, not an employee whose current job assignment includes posting to and monitoring these accounts. 


Build your policies around positive job performance, not concerns about productivity that cannot be specifically defined.


Provide employee training that will encourage positive and responsible use of social media tools. 

Category: Marketing

Cindy Unger

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