The Wild West: The Gold Rush and Social Media Policies

By Monica Z. Austin, SPHR

Similar to the Gold Rush, employers and employees are rushing for gold, but this time the gold is to establish a positive social media presence.  With this flood of companies and individuals participating in social media, employers are trying to establish law and order with policies, without running afoul of the National Labor Relations Act (NLRA) and an employee’s right to “water-cooler” talk.  The National Labor Relations Board has taken a hard look at this area and has attempted to regulate it.  See the Board issued guidance from August 2011, January 2012, and May 2013 for more details. Realizing the benefits, employers do not want to outlaw their employees from using social media, so instead they are now putting policies and training in place for employees.

Employees spend time on social media at work, and the exposure and risks are staggering since 91% of employees have smart phones. Some of this time is work-related while other is for personal reasons.  Social “not” working is the phrase coined to describe the time lost by employees checking the various social networking sites such as Facebook, Pinterest, Twitter, Instagram, Vine, Google+, YouTube, and LinkedIn.  In addition, employees are very casual and impulsive about what they post online.  Bottom line, there is a need for social media policies and training to help mitigate the risks for both employer and employee.

Social media policies and training must not ban employees from using social media, but instead teach employees how to use it in the best interests of both the employee and employer.  There are many reasons for employers to develop a social media policy, including, but not limited to:

  • Curbing harassing, discriminatory and defamatory postings;
  • Warning employees of disciplinary consequences for releasing confidential and proprietary information as well as employer trade secrets; and
  • Putting employees on notice as to what the employer expects should and should not be posted about the employer online

Individuals are extremely spontaneous about what they post, so now is the time to educate employees on how to play it safe in this new frontier.  Employers should add a social media policy to their employee handbook.  When it comes to creating social media policies, employers of both union and nonunion workplaces should use extreme caution and make sure that the policy provisions are narrowly tailored to protect the employer’s legitimate business interests in curbing harassing and defamatory comments and protecting the employer’s valid trade secrets and confidential information. Employers should avoid broad and ambiguous language that could be reasonably interpreted to interfere with the employee’s right to engage in protected concerted activity.

Given the risk of exposure, this policy should be communicated via a training session for employees, and then reviewed at least once a year due to the quickly changing nature of the law in this area.  Social media training should be added to the new-hire orientation and to yearly mandatory training, just like diversity and anti-harassment training.  In conclusion, do not miss out on “the gold,” a positive social media presence, but do mitigate the risks and implement proper social media policies and training.