Social media policies – Compliance Building

New Ruling on a Social Media Policy – Come on Down!

The National Labor Relations Board continues to wreck havoc on companies’ social media policies. That latest to get steamrolled in Boch Honda.

I grew up with Ernie Boch’s commercial proclaiming that his costs are less so his prices are less, so “come on down“.

Employers cannot prevent employees from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions. The NLRB will strike down provisions in social media policies that employees could reasonably construe as an unlawful prohibition.

The NLRB dismissed the following provisions, warranting “little discussion” that they are clear violations.

1. The Company requires its employees to confine any and all social media commentaries to topics that do not disclose any personal or financial information of employees, customers or other persons, and do not disclose any confidential or proprietary information of the Company.

2. If an employee posts comments about the Company or related to the Company’s business or a policy issue, the employee must identify him/herself…

5. If an employee’s online blog, posting or other social media activities are inconsistent with, or would negatively impact the Company’s reputation or brand, the employee should not refer to the Company, or identify his/her connection to the Company…

7. While the Company respects employees’ privacy, conduct that has, or has the potential to have a negative effect on the Company might be subject to disciplinary action up to, and including, termination, even if the conduct occurs off the property or off the clock.

8. Employees may not post videos or photos which are recorded in the workplace, without the Company’s permission.

9. If an employee is ever asked to make a comment to the media, the employee should contact the Vice President of Operations before making a statement.

10. The Company may request that an employee temporarily confine its social media activities to topics unrelated to the Company or a particular issue if it believes this is necessary or advisable to ensure compliance with applicable laws or regulations or the policies in the Employee Handbook. The Company may also request that employees provide it access to any commentary they posted on social media sites.

11. Employees choosing to write or post should write and post respectfully regarding current, former or potential customers, business partners, employees, competitors, managers and the Company. Employees will be held responsible for and can be disciplined for what they post and write on any social media. However, nothing in this Policy is intended to interfere with employees’ rights under the National Labor Relations Act.

12. Managers and supervisors should think carefully before “friending,” “linking” or the like on any social media with any employees who report to them.

You can take a look at other social media policies in my social media policies database.

References:

Boch Imports Case at the NLRB (.pdf)
Another Employer’s Social Media Policy Is Found Unlawful By An NLRB Administrative Law Judge by Joseph J. Lazzarotti in Littler’s Workplace Privacy, Data Management & Security Report

Social Media Policy Update

In the frenetic early days of social media foward-thinking companies thoughtfully sat down and crafted sensible policies to help guide employees who had suddenly turned into web publishers.The companies recognized the risks involved, whether the employee was acting recklessly, or merely writing down unacceptable material without realizing the implications. It was still a small area of risk.

Things change. Facebook has launched as a public company worth billions (although apparently not worth $100 billion). Social media is challenging traditional media in several different way.

You would think that employers should be even more aggressive about curtailing employees and making it clear what is acceptable and note. The National Labor Relations Board apparently thinks otherwise. The NLRB has released its third report on social media cases brought to the NLRB [pdf].

Good luck trying to figure out what the NLRB considers acceptable in a social media policy and what it considers unacceptable.

Confidentiality:

Illegal: A policy that prohibits the “release [of] confidential guest, team member or company information”.
Legal: A policy that cautions employees to be suspicious when asked to disclose confidential information.

Illegal: “Get permission before reusing others’ content or images”.
Legal: “Respect all copyright and other intellectual property laws.”

Offensive or abusive language:

Illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline”
Legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.

Accuracy:

Illegal: Requiring employees to be “completely accurate and not misleading”.
Legal: “Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly.”

Non-Public information

Illegal: “Do not reveal non-public information on any public site.”

So not everything a policy may work, so how about a savings clause like this?:

This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.

The NLRB says no. A savings clause “does not cure the ambiguities in a policy’s otherwise unlawful provisions.

On the bright side, the NLRB did include the complete text of a social media policy that the NLRB considers lawful.

Sources:

May 30, 2012 NLRB report on recent social media cases (.pdf)
January 25, 2012 NLRB report on recent social media cases (.pdf)
August 18, 2011 NLRB report on recent social media cases (.pdf)
After NLRB’s Memo, Drafting Employment Policies Got Trickier by Daniel Schwartz in the Connecticut Employment Law Blog
Want a labor-law-legal social media policy? Bookmark this, I guess. by Eric B. Meyer in The Employer Handbook
NLRB’s position on social media policies remains a bungled mess by Jon Hyman in Ohio Employer’s Law Blog

NLRB Approved Social Media Policy

The National Labor Relations Board has been ruling on social media policies and making a mess of the regulatory landscape. In its May 30, 2012 report on recent social media cases (.pdf) the Board eviscerates many social media policies that resulted in adverse employment action. In the process it confuses the landscape of acceptable social media policy provisions. More to come on that in another post.

One good part of the report is that it does include the full text of a policy that the NLRB found to be lawful. Since they went to the trouble of blessing the policy, I went to the trouble of reproducing it below.

Social Media Policy

Updated: May 4, 2012

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]).

Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful

Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved workrelated complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited

[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media contacts

Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

For more information

If you have questions or need further guidance, please contact your HR representative.

FTC, Bloggers, and Disclosure

The Federal Trade Commission is continuing to pursue bloggers who fail to disclose that they received incentives to discuss a company’s products. Back in December, the Federal Trade Commission released new guidelines that specifically required bloggers to disclose any material connections to a product or company they are writing about. The FTC is focusing its efforts on the company.

The latest company snared in the failure to disclose is Hyundai. The FTC took a close look at a promotion in which bloggers were given gift certificates as an incentive to include links to Hyundai videos in their posts or to comment on Hyundai’s Super Bowl ads. One focus was whether the bloggers were told to disclose or were told not to disclose that they had received compensation.

It seems Hyundai’s first defense was that it wasn’t their fault, but he fault of their advertising agency. The FTC won’t take that defense and pointed out that advertisers are legally responsible for the actions working directly or indirectly for them.

What saved Hyundai is that their established social media policy calls for bloggers to disclose the receipt of compensation. What saved Hyundai’s advertising agency was that their established social media policy calls for bloggers to disclose the receipt of compensation.

By having the policies in place, Hyundai and the advertising agency were able to establish that the bad actions were those of rogue employee operating outside the established policies of the firms. That’s compliance in action.

Sources:

FTC Letter – Hyundai Motor America FTC File 112-3110 (.pdf)
FTC Closes an Investigation Into a Blogging Promotion by Gonzalo E. Mon in Ad Law Access
The Second FTC Action for Online Endorsements – prior post in Compliance Building
FTC and Bloggers – prior post in Compliance Building

Compliance Lessons from Weinergate

In a tearful statement to the media, Rep. Anthony Weiner admitted he posted a lewd picture of his anatomy to Twitter. Not only that, he says he’s engaged in “inappropriate” online communications with at least six other women.

It was just a few days ago that I revisited the Fabulous Fab Rule:

Don’t write emails so provocative that they wind up reproduced on the front page of the Wall Street Journal.

That rule is focused on email which for many companies is archived for years. That means it could end up in litigation or an enforcement action. The rule is really applicable to any type of publishing.

The internet has turned us all into publishers, or at least given us the ability to be publishers. Traditional publishers have layers of review before information, stories, and pictures get published. On the internet, the only layer of review is your common sense. That’s all that stands between you and that send button.

Weinergate is just another example of failed common sense. He never should have hit that send button.

I have not found anything new in the scandal. I don’t think you need a new policy prohibiting people from sending pictures of themselves in their underwear. (I suppose there is an exception if you are in the adult entertainment industry.) Common sense should take care of that.

I suppose its useful to compare this to Eliot Spitzer. He had his own sex scandal, but it required a government investigation. Weiner merely shot himself by sending out a public message.

Sources:

Anthony Weiner Admits to Sending Crotch Shot
Weiner and the Same Old Social Media Lessons by Philip Miles in Lawffice Space
Weinergate: Congressman Claims ‘Facebook Hacked’ as Lewd Photo Hits Twitter by Publius in Big Government .com
Weiner Now Says He Sent Photos in The Wall Street Journal
A Conservative Blogger Looks for Legitimacy in the New York Times
Eliot Spitzer On Weiner’s Press Conference: It’s Not A Proud Moment, ‘Believe Me, I Know’ by Matt Schneider

Image of Meet Congressman Weiner is by David Boyle
CC BY 2.0

Organized Labor and Social Media Policies

While preparing for my presentation today on social media policies, I came a cross this great article by Seth Borden: Labor Disputes Arising out of Social Media.

Having organized labor in your workforce will complicate the creation and enforcement of a social media policy. Potential unionizing activities offer similar problems. Employers must consider traditional labor law principles when creating and enforcing workplace social media policies.

The National Labor Relations Board has issued advice on social media policies. Sears had a policy that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” The NLRB’s Division of Advice concluded that the charge against Sears should be dismissed. However, Mr. Borden concludes that the current make-up of the NLRB is more labor friendly and could rule the other way if again presented with a similar policy.

The challenges of drafting a social media policy will be to carry the existing law involving email and surveillance limitations to the current age of web publishing. This is not a unique challenge. You can see the same challenge with FINRA in the financial services industry.

If you have organized labor in your workforce and are concerned about social media use by your employees you should spend a few minutes and read Borden’s article.

Seth Borden is a partner in the New York office of McKenna Long & Aldridge and a member of the firm’s labor and employment practice. He co-writes the firm’s blog, Labor Relations Today, covering developments in labor law.

Sources: