4 elements of your social media policy that may be illegal

Provisions in social media policies that effectively put gag orders on employees or that force them to say they’re not speaking on behalf of the country might not hold up in court.

A study from Proskauer, a business-focused law firm, revealed that companies routinely take action against employees for their behavior on social media platforms, even when it’s their own account used on their own devices on their own time.

Although the infractions that prompted the disciplinary action may have been consistent with the companies’ social media policies, the policies themselves could be illegal. It’s time for companies to revisit their social media policies.

According to the Proskauer report, more than 70 percent of companies reported taking disciplinary measures over misuse of confidential information (80 percent), misrepresentation of the company’s views (71 percent), inappropriate non-business use of social media (67 percent), and disparaging remarks about the business or fellow employees (64 percent).

Read through just about any company’s social media policy, and you’ll find that the document spells out employees’ obligations in these and other regards. But in a sweeping recent ruling, an administrative law judge with the National Labor Relations Board ruled these and other policy elements could violate workers’ protected speech.

To begin with, the judge ruled on a provision in Kroger’s policy (Kroger is a U.S.-based grocery store chain) barring employees from online behavior that would be inappropriate at work and that would reflect negatively on the company, deeming it overly broad. It could, the judge said, bar protected speech such as criticism of the company’s treatment of employees or discussion of wages, hours, and terms of employment.

I always look to IBM’s Social Computing Guidelines for best-in-class policy language. The eighth plank of that policy cautions employees not to engage in any “conduct that would not be appropriate or acceptable in IBM’s workplace.”

Between companies that used IBM’s policy as a template and those with like-minded lawyers and HR staff, a lot of organizations will have to consider whether they can retain this clause. But we’re not done yet.

The third item on IBM’s list instructs employees to “make it clear that you are speaking for yourself and not on behalf of IBM.” Kroger had a similar rule, also struck down by the judge. This, according to the ruling, “unduly burdens employees’ rights because it would be likely to chill employees’ willingness to engage in protected communications.”

The judge didn’t dispute that Kroger has a valid interest in not wanting it to appear that employees are speaking on its behalf, but did assert that so few employees’ social interactions could be confused with official Kroger statements that the company’s interest cannot override employees’ rights.

IBM’s 12th and final policy forbids employees to “misuse IBM logos or trademarks and only use them if you have the authority to do so.”

Not so fast. The judge found this provision overly broad, as it prohibits a lot of non-offensive uses of the company’s intellectual property that employees might be inclined to use as part of their protected communications.

The final IBM plan you’ll find in almost every social media policy reads, in part, “Don’t provide IBM’s or a client’s, partner’s or supplier’s confidential or other proprietary information.”

Again, the judge turned policies upside down by ruling that this restriction violates Section 8 of the National Labor Relations Act because it prohibits employees from having conversations about personnel matters and business plans, which are also protected under Section 7 of the act.

These four components often serve as the foundation for company social media policies. Each has been found illegal, at least as they apply to Kroger’s policy. If your U.S.-based company’s policy contains any of these elements, it’s time for a meeting to determine whether a major rewrite is in the cards.

Shel Holtz is principal of Holtz Communication + Technology. A version of this story first appeared on his blog a shel of my former self.

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