The Social Media Policy, Risk Management and Employment Law

Developing Corporate Social Media Polices. Photo: Joe Lodge/Flickr (CC)

Social media communications can have an eternal shelf life with significant impact on a company's brand. Sensitive company information can quickly become subject to public scrutiny or create legal exposure in this era of instant micro-publishing. Communication outlets like Facebook, Twitter and LinkedIn can turn an employee's general discontent into to a brand manager's nightmare. All of this should give pause to those charged with developing risk management strategies.

To Post or Not to Post? Is That the New Question?

Companies recognize the growing risk management concerns related to social media. The practical and proactive strategy used by most managers is to develop a written social media policy. In fact, coupled with computer software blocking and filtering techniques, many employee handbooks already cover some social media policy during business hours. What happens after an employee leaves work is becoming the area of growing concern for employers.

The Overly Broad Social Media Policy

A disgruntled employee's Facebook communication about her supervisor did not justify her employer, American Medical Response of Connecticut, Inc. (AMR), firing her, according to a February 2011 National Labor Relations Board settlement announcement. AMR had a social media policy in place when firing the employee and it did purport to cover the employee's post-work activity.

The NLRB complaint against AMR was that its policy was overly broad. The complaint's settlement included AMR's agreement to revise the policy. Though it would have been quite instructive for industry, the NLRB did not publish the exact content of the AMR policy that was found too restrictive.

On April 27, 2011, the NLRB announced approving settlement of another Facebook related firing which included making the employee whole by the company for lost earnings. A telling search at the NLRB website performed for "Facebook" recently returned 17 case results, and 7 case results for "Twitter". The increased use of social media by workers may lead to greater employment law disputes involving this realm of electronic communications.

Industry Benchmarking and Professional Counsel

Many companies make their social media policies directly available on their websites. Chris Boudreaux developed a handy database of policies from 174 companies. Sort it by industry to gain comparative insights on the risks that mainstream organizations are covering in their policies.

Suffice it to say, a comprehensive policy is shaped by a company's industry standards and the requirements of its legal jurisdiction. Small and midsize businesses without in-house counsel, should take care that an HR or compliance officer, or outside legal counsel, regularly reviews an existing, or prospective, policy. This will make sure that it complies with applicable federal and state laws, as well as the growing administrative law settlements and decisions.