The government is watching social media policies

Chances are your company either has a formal social media policy or is thinking about developing one. Increasingly, the government is having something to say about how far those policies can go.

Chances are your company either has a formal social media policy or is thinking about developing one. Increasingly, the government is having something to say about how far those policies can go, especially if they address – as many do – employees' personal social media activity.

Corporate social media policies extend into employees' personal activity because many of the things those employees do can have a significant impact on the organization. They might use the company's logo. They might identify themselves as employees and inadvertently create the impression that they are representing their employer. They may disclose confidential information and do and say all sorts of other things that employers wish they wouldn't.

To limit the potential for damage and help save employees from the consequences of their own poor judgment, companies are adopting social media policies that range from gentle admonitions to strict rules backed by the threat of discipline and even termination. But at least one federal agency is saying some of them go too far in restricting employee speech.

That agency is the National Labor Relations Board (NLRB). While we tend to think of the NLRB as getting involved only in employer disputes with unions, its rulings in this area potentially will affect almost all private employers. (I say “potentially” because some of these NLRB rulings may be challenged in court and the organization as a whole is in limbo right now after a federal appeals court ruled last month that some of its members were unconstitutional “recess” appointments.)

Bill Feldman, a Washington, DC-based lawyer and long-time senior counselor with my firm (and, yes, he happens to be my brother), recently prepared a report examining the several dozen NLRB rulings on this subject, a number of which required companies to change their policies. In the report, he analyzes the impact of those rulings on 14 areas typically addressed by corporate social media policies. As you might expect, the devil is in the details. But he says there are some broad themes that companies would do well to heed.

“Two things stand out,” he suggests. “One is that the NLRB takes a fairly expansive view of employees' rights under Section 7 of the National Labor Relations Act to discuss with each other their wages, benefits, and other conditions of employment. That means that broad prohibitions against mentioning the company, or against saying anything negative about the company or individual employees, are likely to be a problem.

“The other thing that runs through many of the rulings,” he continues, “is that many provisions can be saved by using examples to show what they do – and don't – cover.” For example, the NLRB has objected to a number of provisions that protect against the disclosure of confidential information. You might think that's a pretty standard and noncontroversial part of your social media policy, but here's the problem: The Labor Board has said those provisions may be interpreted to forbid legally protected discussions of employment issues. The key to protecting these provisions, the Board has said, is to provide “context or examples of the type of information it deems confidential, sensitive, or non-public in order to clarify that the policy does not prohibit [protected] activity.”

In my next column, I'll review some of the individual social media policy provisions that the NLRB has addressed. The big lesson: For your employees, social media is today's water cooler. Much as you might want to control everything your staffers say about your company, there are limits – and the government is paying attention.

Bob Feldman is cofounder and principal of PulsePoint Group, a digital and management consulting firm. He can be reached at bfeldman@pulsepointgroup.com. His column focuses on management of the corporate communications function.

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