Before the internet we had a landline phone, trains and airplanes if we wanted to communicate long distances or talk face-to-face with others that were far away.

Since then, social media has connected the world rapidly and with vastly accessible and affordable means. The disruptive and significantly innovative technologies of social media have brought remarkable communication synergies to us in a way that some of us never imagined possible. Seemingly so earth-shattering at times that many of us are intimidated by its capabilities and choose to shy away from utilizing or exploring social media in depth. Some of us remain focused on basic fears like, “be careful what you post, you never know who can see it and how they can use it against you” and “once it’s on the internet it’s out there forever.”  While there is certainly merit to those statements, those fears should not paralyze companies from embracing social media beyond its surface. The reality is that social media is now massively embraced globally by all generations, businesses and groups alike. Each year, more businesses will make the leap to develop websites, create online campaign strategies, sell their goods and services via ecommerce, harvest useful data analytics, recruit new talent and even blog about their latest and greatest accomplishments. Businesses have been moving past initial fears for over a decade because of the exponential reach and value that social media will bring to their platform and those benefits far outweigh the concerns of a novice user.

I was at the National SHRM (Society for Human Resources) meeting in 2017 in New Orleans and while there I attended a recruiting strategy seminar. I was pleasantly surprised to hear a statistic about Twitter being the most frequently visited network that millennials will access to perform their primary college graduate job search. Working in the roofing industry at the time, I remained suspect about the amount of roofing companies, manufacturers and distributors that would be available via a Twitter presence. However, after creating a Twitter account and searching words like “roofing” and “roofers” to make initial networking connections, I was stunned to see the number of roofer associated Twitter accounts across the globe and equally as stunned to see how willing those roofers were to connect with me. After a few months, I was connected to several thousand roofing accounts and had many more “suggested” roofing connections daily.

Early on, many businesses had a hands-off philosophy when it came to governing employees’ associations with the company’s online content through a social media policy. Reasons included leaders not fully knowing how to tackle such a vast initiative, a lack of available social media case law, and not wanting to restrict this newly found creative and infinite space. While I was part of that school of thought at the time, and although employer/employee social media case law still lacks, I have evolved to a more palatable approach to supporting a social media policy regarding employees’ associations with their employer’s content. It’s also important not to stifle the authentic energy and passion surrounding employee loyalty and not to infringe upon federal and state laws that protect user content, concerted activity and internet utilization.

Attorneys erring on the side of caution may still side against a company social media policy and for good reason. The National Labor Relations Board’s (NLRB) defined “concerted activity” as it pertains to employees’ social media use is not yet made crystal clear by case law and if a company’s social media policy ostensibly infringes on protected activities, the policy could prove to be more harmful than good. However, the NLRB appears to support narrowly tailored social media policies and the NLRB’s general counsel has attempted to provide clarity by describing specific examples of what does not constitute “concerted activity,” therefore suggesting that an employee may be disciplined if a social media policy is in place and is subsequently violated. After reading through the examples from the NLRB, one can determine that most of the content outlined was mentioned because the employee’s social media post did not relate to the terms and conditions of employment, lacked the initiation of group action and/or didn’t seek to involve other employees when posting; three conditions that at times may lead to suggested concerted activity.

What should a company look to include in their social media policy? Remember to know your state laws and always review your policy with outside counsel before distributing. Suggestions below are based broadly on federal law only and are never meant to infringe upon concerted activity:

1.  A requirement that employees also adhere to/sign the company’s code of business conduct and ethics in addition to the social media policy, connecting the two policies and highlighting integrity as the foundation for both. 

2.  A statement that harassing content will likely result in discipline and possibly immediate dismissal from employment.

3.  Prohibit employees from posting about confidential company information like the company’s design plans, internal operations, legal matters, non-public financial information, sales trends, strategies, forecasts, and future undisclosed promotional activities.

4.  Prohibit employees from responding to online press inquiries and rather provide direction on a company representative to handle press and media inquiries.

5.  A reminder about copyright laws.

6.  A requirement that personal social media use shouldn’t interfere with employee’s responsibilities at work.

7.  A statement that employees, consultants, distributors and contracted vendors acting on the company’s behalf are never to destroy, damage or delete followers from a company owned and operated social media account.

8.  A statement that an employee may typically be disciplined/terminated if a social media policy is violated.

What should a social media policy avoid?

1.  Section 8(a)(1) of the National Labor Relations Act (NLRA) declares it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights to self-organize, form, join, or assist labor organizations, bargain collectively, or engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. So, it is most prudent to avoid any language that may infringe upon perceived concerted activity. Instead add a disclaimer like, “It is never our company’s intent to interfere with protections under the National Labor Relations Board.”

2.  Know your state laws. Some states have broad lifestyle discrimination statutes, which can prevent employers from discriminating based on any lawful behavior that an employee engages in while off-duty and off-premises.

3.  Never ask employees for their social media account logons and/or passwords.

Understanding the importance of why companies now need a social media policy follows the desire to highlight and maintain a professional and striking brand image. Companies want to attract users to view on-line campaigns, buy goods and services, increase positive data indicators and appeal to top talent by showcasing the image it intends to project. Companies also have the responsibility to address complaints of social media harassment or discrimination known to the employer if the harassment is related to the workplace. 

Stating your company’s position on a social media policy shows employees that the company cares about its online image and aims to set professional standards. Employees who are loyal to the company and the brand image will in turn follow suit. A social media policy outlines the corporate guidelines to reduce the risk of false and negative content while ensuring communication of its authentic and best version of itself in the online world. Is it time to start drafting?