Social Media Policy: 6 Additional Key Policies To Update

By James Wu

Are all of your companies policies as up to date as your social media policy?

So, your company has promulgated a workplace social media policy, and believes that the policy is state-of-the-art. Your company has probably worked hard to get its social media policy compliant with current standards. Someone (perhaps you) has done research and has consulted with an attorney regarding this masterpiece. Additionally, someone in your company has read the National Labor Relations Board’s (NLRB) third, and most recent, guidance memorandum on social media, and has reviewed the sample social policy it provided. You are happy that your company’s social policy contains numerous examples of acceptable, and unacceptable, employee social media behavior. Your company’s policy even has language regarding the Federal Trade Commission’s guidance on endorsements. You are proud that your company has put such a great social media policy together, or has updated an old one, to address a topic that is near and dear to you.

If any of these statements are untrue for you and/or your company, read my post on why all employers, unionized or not, should pay attention to the NLRB. After you read that, stop surfing the web, and go focus on your company’s social media policy.

If you are still with me, I have some good news and some bad news for you.

First, the good news: Congratulations! It is not easy for a company to stay up-to-date regarding compliant workplace social media policy. The landscape changes fairly often, and everyone, from the NLRB, to Courts, to the FTC, and various state legislatures have things to say about social media in the workplace.

Now, the bad news: There are really two pieces of bad news.

One: The law on social media use in the workplace changes so often that companies who want to have and maintain the best policies will likely need to update them fairly often. Much like the rest of a company’s employee handbook, social policy in particular should be reviewed and updated frequently and no less than annually.

Two: Now that your company has a great social media policy in place, it needs to make sure several other workplace policies are also updated. Simply put, your company cannot think of its social media policy as a stand-alone policy. Social media is everywhere. Social media’s ubiquity is a tremendous benefit to salespeople, public relations folks, and marketers. That same omnipresence, however, is a nightmare for employers since social media use intrudes upon some very divergent workplace issues. Below are a few other workplace policies that your company should revise/implement to make sure they are coordinated with your social media policy.

Let’s start with some fairly obvious policies:

Prohibited Harassment/Discrimination/Retaliation Policy – It is great if your company’s social media policy prohibits employees from using social media to harass, discriminate, retaliate or bully someone else. Examples of prohibited use should be included in your company’s social media policy. But, employers should remember to update their anti-harassment/discrimination policies to reflect that an employee’s on-line activities can rise to the level of prohibited harassment/discrimination. For example, when defining or describing prohibited harassment, your company’s anti-harassment policy should include examples of an employee posting sexually offensive material on social media sites, improper use of email/texting, watching inappropriate content on a tablet while at work (similar to bringing in a Penthouse magazine back in the day, for example), using derogatory or bullying language via social media, and more. Simply, employees should be reminded that social media is providing new examples of what an employer can and should consider to be prohibited by an anti-harassment/discrimination policy.
Disciplinary/Termination Policy – In most employee handbooks, employers typically list a variety of activities that exemplify behavior that may lead to “disciplinary action, up to and including termination.” Employers should update that list to include examples of improper use of social media. But remember that some activities, though disliked by an employer, cannot be prohibited. For example, in California, employers cannot prohibit employees from discussing wages or working conditions. California Labor Code Sections 232 and 232.5.
Confidential Information/Trade Secret Policy – Employers often have policies and/or agreements prohibiting employees from revealing company trade secrets and/or confidential information. Before social media, employees would reveal such information orally or by copying documents, formulas, customer lists, etc. Employers should update their confidential information/trade secret policy to prohibit the use of computers, social media, etc. in publishing such information. This revised policy should explicitly list what type of information the company considers to be protected “confidential information” and/or “trade secret.”

Here are some not-so-obvious policies:

Cell Phone/Driving Policy – Many states, including California, prohibit drivers from using cell phones while driving. The laws in each state may be different, but your company may want to take the most conservative approach to protect itself. To do so, your company’s policy should prohibit the use of cell phones for any purpose (except in emergency) while the employee is driving. This means, no phone chit-chat, no texting, and no updating social media status while driving. The law in your state may allow phone calls as long as the call can be conducted hands-free (using an earphone for example), so at the very least, employers should update such policies to comply with state laws. Having such policies not only help to encourage compliance with law, but also help keep employees safe while on the road, and should reduce accidents.
Overtime Work Policy – This policy is geared towards your company’s non-exempt employees (generally, those employees who are eligible for overtime). Employers can get into hot water with overtime/wage payment issues if their non-exempt employees work overtime but are not paid for such overtime work. How does social media play into this? Non-exempt employees who check email, receive/respond to texts from their managers at night, update the company’s blog at night, or who otherwise work beyond 40 hours per week (and/or 8 hours per day in California) are entitled to overtime compensation for that work. Employers should make sure that they have a policy regarding overtime work, and that non-exempt employees can only perform overtime work when approved in advance. Employers should also make clear that employees can be disciplined (see above policy) for working overtime without advanced approval. Note, even if the company disciplines the employee for performing unapproved overtime, your company should still pay for the overtime work to eliminate the risk of dealing with a wage and hour claim.
Complaint/Open Door Policy – Most employees who choose to vent about their workplace, or their miniscule paycheck, or their mean boss, do so because they believe (often incorrectly) that doing so via Twitter, or Facebook, is a good way to vent to a small group of followers or friends. This in turn, makes the employer look bad, among other things. To curb some of these online rants, employers should consider providing stronger complaint/open door policies. Employers should encourage employees to resolve differences directly with co-workers, or to go to the Human Resources department, or to a company Ombudsperson, or to call an anonymous toll-free line that the company has set up for employee complaints. In addition to having such a policy, employers should actually foster a work environment that supports the policy. To do so, employers need to rely on having good managers and supervisors, and train them to encourage open communication. By having a true open-door policy, employers may not only avoid having dirty laundry spread via social media, but may also be able to resolve many employee issues before they evolve into larger disputes and lawsuits.

If it hasn’t already received it, social media deserves your company’s attention, not just for marketing, and public relations purposes, but for employee relations purposes. A top-notch workplace social media policy regarding employee use of social media is a must-have for most companies. But, all that hard work of getting that social media policy “just-right” will be wasted if other related (and not-so-related) policies are not updated accordingly.

The above six other policies are just a few that employers should keep in mind regarding the many issues social media creates in the workplace. There are others, including policies on “workplace privacy,” “acceptable computer/equipment usage,” and “workplace violence.” Can you think of other important policies that should be updated in conjunction with these? Is your company taking steps to cover all its bases regarding social media in the workplace?

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu (14 Posts)

This monthly Social Media and Employment Law column is contributed by James Y. Wu. For over 15 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University.