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Drafting a Social Media Handbook Policy for Developers

February 19, 2013 Article Start Previous Page 2 of 3 Next
 

Additional Suggestions Based on Federal Labor Law

In addition to recent NLRB cases, the NLRB has also offered extensive guidance through its Acting General Counsel's reports, which explain the NLRB's current position on social media. Unlike a regular NLRB case, not everything in these reports is the law yet. However, the reports are still very useful because they offer companies cautionary guidance and are very likely to become the law in the near future. Foremost, the reports reiterate that handbook policies must not be too broad; otherwise, employees will think that their right to engage in unionization activities is also being restricted. The reports contain additional useful advice, which I have summarized below.

Give the policy some context: A policy can restrict certain social media activities if the policy provides enough context that employees know that the policy is not meant to restrict their unionization activities. Therefore, a company should try to explain the business purpose behind their policy. The examples below give their respective policies the appropriate context and are therefore lawful.

  • "Employees may not use social media to post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of workplace policies against discrimination, harassment, or hostility on the account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."
  • "Employees may not use or disclose confidential/proprietary information that is necessary to ensure compliance with securities regulations and other laws."
  • "Employees must maintain the confidentiality of company trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications online."
  • "Promotional Content: Employees may not refer to the employer by name or publish promotional content. Promotional content is defined as content that is designed to endorse, promote, sell, advertise, or otherwise support the employer and its products and services." (Yes, this company policy was meant to comply with the FTC's endorsement guidelines, too.)

Provide definitions: Be sure to define ambiguous words that employees could mistakenly believe are restricting their unionization activities. For example, the term "inappropriate communication" could refer to sexual harassment, but it could also refer to communications about wages (which the NLRB explicitly protects) if the term is not properly defined.

There are many other words that also require definitions: misleading, untrue, inaccurate, sensitive, confidential, proprietary, non-public, private, personal, inflammatory, disrespectful, unprofessional, dishonest, unreasonable, objectionable, offensive, demeaning, abusive, damaging, embarrassment, harassment, and defamation. This is not an exhaustive list. When in doubt, define the word clearly.

Use examples: In addition to defining ambiguous words, provide examples. For instance, explain that the term "inappropriate communications" refers to activities such as "displaying sexually-oriented material" or "revealing trade secrets."

Do not require employees to be courteous and avoid conflict when using social media. Employees could interpret such "courtesy policies" as restricting their unionization activities because discussions about unionization are often heated and cause conflict. Instead, be sure to clarify what kind of conduct is not appropriate (e.g., using profanity) through proper definitions and context.

Do not restrict employees from posting about certain topics that federal labor law normally allows them to discuss, such as wages and other terms and conditions of their employment.

Do not restrict employees from using social media at work. Federal labor law allows employees to engage in unionization activities while on company premises as long as employees do it during non-work time (e.g., lunch) and in non-work areas (e.g., outdoor picnic area).


Article Start Previous Page 2 of 3 Next

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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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