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Drafting a Social Media Handbook Policy for Developers

February 19, 2013 Article Start Page 1 of 3 Next
 

Big companies have recently gotten into hot water by trying to govern employee social media use -- but the right way to do this is even more complicated than you might expect, so Gamaustra presents this article, written by an attorney, to help put you on the right track.

So, you are an indie game developer getting close to releasing your first game. Or maybe you are a large company that is ready to launch your next triple-A title. Perhaps your employees have already started talking about your games on Facebook, Twitter, or on their personal blogs. And maybe you are starting to wonder if your employees' online actions can impact your game's success.

Now you are thinking about whether you should revise (or have?) a social media handbook policy. In the game industry, most employees are very tech savvy, so you want to have some sort of policy regulating their social media usage, right? If so, read on for guidance on how to draft your policy with federal labor law and the Federal Trade Commission's guidelines in mind.

Federal Labor Law

Federal labor law applies to both unionized and non-unionized workplaces. This impacts all companies regardless of company size, with limited exceptions. Federal labor law gives employees the right to engage in activities, such as discussing their wages and criticizing their company, which could lead them to improve their working conditions or form a union.

The National Labor Relations Board (NLRB), the federal agency that safeguards employees' rights to unionize, says that social media is a viable method of forming a union. Therefore, if a company's social media policy is too broad (for example, "do not disparage or damage the company online"), then the company risks violating federal labor law because its social media policy might inadvertently restrict its employees' rights to unionize.

The FTC's Endorsement Guidelines

Companies should also keep the FTC's endorsement guidelines in mind -- specifically, the requirement for the disclosure of "material connections" between companies and advertisers/endorsers. Being an employee of a company counts as a material connection (an "endorser") that has to be disclosed.

An employee may not directly receive payment or benefits for writing about the company and its products like an advertiser would; nevertheless, the employee's job security may depend on the company's success. Therefore, a violation of these guidelines would include an employee who tweets that your game is "the best game ever" without disclosing that she works for your company.

Potential Conflict?

Companies cannot have policies that completely forbid their employees from posting "endorsements" of their products and services online because this could conflict with federal labor law. For example, a policy stating, "Do not use social media to discuss anything related to the company and its products/services" is too broad and may signal to employees that they cannot engage in unionization activities.

At first, the NLRB rule and the FTC's guidelines seem like they conflict with each other. On one hand, the NLRB says that a company cannot have a policy that is too restrictive of its employees' social media usage, but then the FTC says that a company should regulate its employees' social media activities. So, what should a company's handbook policy regarding social media usage be? And how can an employee safely talk about their company's upcoming game or hardware via social media?

Luckily, there is a way to comply with both rules: have a policy stating that employees are advised to (or must) disclose their relationship to the company when promoting and endorsing its games/hardware via social media. Such a policy is narrow enough that employees will not think that the policy intends to restrict their unionization activities, yet the policy still encourages compliance with the FTC's guidelines.

How can an employee properly disclose their employment relationship? The good news is that the FTC's guidelines do not require employees to use any special language when disclosing their employment relationship as long as the disclosure is clear and conspicuous. A simple statement such as "I work for Company X and we just released [insert name of awesome new game] and it's awesome" is sufficient. And for Twitter, which limits users to just 140 characters, even a simple hashtag is sufficient (e.g., #microsoftemployee or #ad).

Just make sure that the audience is aware of the employment relationship! It is probably not enough for an employee to have a general disclosure on their "about me" page (or list the company as their place of employment on Facebook/Twitter) or assume that their social media followers know whom they work for and what games/hardware their company and its affiliates produce. To be completely safe, an employee should directly disclose their employment relationship within each separate post that endorses their company's products.


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Comments


Joshua Darlington
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I'm amazed that all workflow isnt passed through some form of social media as a progression from 90s email tech. Seems like an obvious move.

Top down concerns about informal use of social media seems to come from a 20th century idea of communication technology.

Eric Long
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This is helpful to both employers and employees. A lot of great information here that many people may not have been aware of.

E Zachary Knight
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After reading all this, I am now convinced that we need MORE government to protect us from people using Twitter, Facebook etc. Just imagine what damage can be caused by someone talking about how awesome the game they are working on is without proper disclosure. It could be catastrophic. Please protect me oh benevolent government.

PS: Yes, I know that a good chunk of this article is in reference of protecting employees from overly broad or overreaching social media policies, but there is some really dumb stuff in there too.

Joshua Darlington
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Not sure I follow your logic. But it was nice of big gov to fund the ARPANET.

E Zachary Knight
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Not sure what who invented ARPANET has to do with pointless government regulation like mandatory Twitter disclosures, but ok.

Joshua Darlington
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Your initial statement included a broad sentiment about not needing "MORE government." Pointing to useful infrastructure was addressed to the big gov vs small gov part of your comment.

Gov opin about stuff like Twitter disclosures are nothing new. I believe that the US gov has held a position since the days of the locomotive (or maybe the telegraph) that privacy rights stop when you hand your communication to a third party.

Perhaps you have faith in quantum encryption but I expect that information dynamics will continue to cascade toward a more transparent equilibrium.

E Zachary Knight
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How is this sentence:

"After reading all this, I am now convinced that we need MORE government to protect us from people using Twitter, Facebook etc."

A broad statement about all government services/inventions? Seems pretty specific/narrow to me.

E Zachary Knight
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I really need to respond to something else in your comment.

"I believe that the US gov has held a position since the days of the locomotive (or maybe the telegraph) that privacy rights stop when you hand your communication to a third party. "

While that may be the government's opinion, it is in complete contrast to the protections granted by the 4th Amendment.

Do you honestly believe that your right to privacy is nullified when you hand your letter to the post office? If your statement was true, the US government would be perfectly in its right to read your mail, email, IMs, and listen in on your Skype and phone calls. Do you really believe that? Or are you just confusing the topic I was referencing too?

Joshua Darlington
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My initial comment was "Not sure I follow your logic" - how did you jump from company Twitter policy to gov regulation? I may have missed something.

The EMPHASIS in your statement seemed to give it a specific emphasis.

I am not a constitutional scholar. I'm not a big fan of constitutionalism.

My comment regarding gov policy was historical. My point being that gov policy has been consistent for like 150 years. So some new blip about Twitter isn't that interesting to me. I'm very cynical but pragmatic about gov issues. If you have some Utopian visions that you would like to share, I will sympathize but I might question logistical considerations.

E Zachary Knight
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"how did you jump from company Twitter policy to gov regulation?"

The entire first page of this article is about government regulations and how they apply to company social media policies. That is how.

"The EMPHASIS in your statement seemed to give it a specific emphasis."

Yes, a specific emphasis on government regulation of social media usage by employees.

"I am not a constitutional scholar. I'm not a big fan of constitutionalism."

As made apparent by your statement regarding government policy on privacy.

"My point being that gov policy has been consistent for like 150 years. So some new blip about Twitter isn't that interesting to me."

Personally, I find it very interesting and of importance to me to understand how the government is attempting to control my usage of social media, especially when its control could be a violation of my 1st and 4th amendment rights.

Joshua Darlington
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The first page? Maybe I didn't understand the first page. It seemed like the gov regulation they describe is in place to keep employers from restricting their employees free speech. Or at least limit that effort. Is that a misunderstanding? Or is that your concern? Is it your position that companies should be able to restrict any and all speech at the workplace?

"As made apparent by your statement regarding government policy on privacy."

Are a constitutional scholar? Some people devote their lives to such things are recognized by formal institutions for their work in this area. They're the people that typically argue out these issues in our judicial system. We can have a layperson conversation but perhaps it would only reveal both of our ignorances of the actual issues in play.

IMO Constitutionalism as a form of absolutism has been tainted by its over use on dubious issues such as defending slavery. The right you may be trying to protect - the right of employers to restrict the free speech of their employees seems like a questionable use of an appeal to our constitution. But perhaps I misread or misunderstood your concern. If so, sorry.

E Zachary Knight
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Here are a couple things I believe based on this article:

1) The FTC's Endorsement Guidelines are pointless in many cases in which they are applied. This is especially true when it requires that employees add a disclosure when talking about the company they work for or its services and products.

2) There are a lot of great suggestions and rules described in this article regarding social media usage by employees, but do they all need to be government regulated?

Jonathan Adams
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If the government doesn't regulate it then the company can have you sign it away.


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