Social media policy and your employees

“Reasons I should not be allowed to work from home,” she wrote. “Too many cushiony horizontal surfaces prime for nappage… I can lie down underneath my desk and no one is going to know. No one.”

Imagine you’ve just learned that one of your employees has posted this entry on her personal blog or Facebook page.

The entry, by the way, was real. And the poster’s employer, a California software design firm, handled it by firing her sleepy head. And maybe that was appropriate for the situation.

But would it be for yours? Do you know how to handle such employee conduct, and do you have a policy in place to guide you?

Legal uncertainty
Employment lawyers point out that there’s a good reason why employers need policies covering social media and blogging: The law in this area is fluid and evolving as state and federal courts grapple with such issues, often for the first time.

This means you can’t be entirely sure what employees’ legal rights – especially privacy rights – are when it comes to their use of such web tools. So it’s all the more important that you:

• Avoid disputes by laying out clearly what employees should and shouldn’t do when blogging or using social media, and
• Cover yourself against any eventual legal action by informing employees where they do – and don’t – have a reasonable expectation of privacy in their online activity.

Permanent public record
Of course, blogs and social media aren’t the same thing – blogs are authored by a person or team while social media involve more two-way communication and networking – but both create a permanent public record on the Internet. So they can typically be addressed by a common policy.

According to employment lawyers David Gross of Proskauer Rose and Renee Jackson of Nixon Peabody, here’s what a good blogging and social media policy should do:

1. Notify employees of monitoring. If you’re going to look at employees’ social media pages and/or personal blogs, it’s imperative that you tell them ahead of time. If you do, it’s harder for them to claim later on that they had a reasonable expectation of privacy.
2. State the consequences of misuse. Policy should tell employees that abuse of social media/blogs can be grounds for discipline up to and including termination.
3. Create rules on the use of work-related equipment. Depending on your organization’s culture and requirements, you may or may not want employees using work computers and Internet connections to post to blogs or social media. Your social media policy should state whether this is permissible. (Some companies, notably high-tech ones, encourage certain social media activities by employees, and don’t mind if these take place at work.)
4. Ban discriminatory, defamatory, harassing or false remarks. Such material can become part of a hostile work environment claim by another employee, or even a defamation claim by a customer or other outside party.
5. Protect organizational property/trade secrets. Policy should clearly prohibit the disclosure of such confidential information.
6. Require personal identification. Anonymous blogs can prove conduits for the leaking of company secrets, or remarks that discriminate or harm the organization’s reputation. It’s helpful to require that employees identify themselves when posting about work-related matters.
7. Discuss appropriate use of organizational identity. You may want to prohibit – or at least regulate – the use of your trademarks, logos, etc. in employees’ personal postings.
8. Require a disclaimer. If employees post personal comments about your organization or the business you’re in, you should oblige them to state that these comments don’t reflect the viewpoint of the organization.
9. Channel complaints. Instruct employees to bring work-related complaints to a manager and/or HR before blogging or posting about them.
10. Encourage positive postings. Policy is by nature defensive/reactive, but it’s important to also recognize that employees’ social media/blogs can say nice things about your organization – and each other. Remind employees these kinds of postings are welcome.

Gross: dgross@proskauer.com; Jackson: rjackson@nixonpeabody.com