Heather Bussing | Founding Member of the HRExaminer Editorial Advisory Board

Heather Bussing | Founding Member of the HRExaminer Editorial Advisory Board

Heather Bussing is a returning contributor to our HRExaminer Editorial Advisory Board. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. While the courtroom is a place she’s very familiar with, her preferred approach to employment law is to prevent problems through early intervention and good policies and agreements. Full bio

I am not a fan of extensive or granular employment policies.  I believe they end up being more noose than protection—for both employers and employees.  Often the policy completely defeats the purpose as the employer and employee are forced to suffer through the analysis, compliance with procedures and multiple reviews, when everyone would be better off  to just end the relationship and move on.  Having flexibility to deal with each situation based on the circumstances allows the problem to be solved or resolved quickly and with the widest array of options.

But lawyers and HR managers are very concerned with risk management, treating people fairly and consistently, and letting people know what to expect.  So having written policies is a way to try to solve those issues in advance of the problems.  Besides, they look official and important.

Anyone who has actually received a policy manual usually has no idea what it means and just signs the acknowledgement with a prayer that they never have to look at it again.

But when a problem arises, the lawyer’s and HR manager’s first question will always be, “What’s the policy on that?”   So now that employees are blogging and tweeting and developing company Facebook pages, there must be policies.

There are two reasons to have social media policies: 1) to protect trade secrets and other legally confidential information; and 2) to control brand and marketing messages.

If you have a confidentiality, trade secret or non-disclosure agreement/policy, then see if social media communications would be covered.  They probably are because the language in those things is usually so broad you can’t leave the building with a copy of  the policy without violating the policy.  I once was taking photographs in downtown San Jose. The guards for one of the software companies there came outside and across a public street to let me know that photographing the exterior of the building– outside in the world for everyone to see– was a security breach.  Makes me wonder how they feel about Google Earth.

In any event, your nondisclosure agreement or confidentiality agreement probably covers social media disclosures.  If it doesn’t, that’s not hard to fix.  So you probably don’t need a separate social media policy to protect trade secrets.

The real issue is whether and how much you want to control what gets said about your company.  This is a function of your brand, culture and marketing strategy.  It’s not really an HR or legal function.

Do you have control issues and what are they?

One company I know has a policy of allowing the good, the bad and the ugly, but not the mean.   They value the immediacy, spontaneity and perceived credibility of social media.  They also want to promote a culture of transparency and openness. So they watch what’s being said, but rarely intervene.  They draw the line at personal attacks and antagonistic horse manure.  (That’s a term of art—if you use it in your policy, I bet it’s clearer that what’s there.)

Other companies have an entire litany of individual policies for each social media venue, complete with explicit instructions on when and how to use it, as well as specific parameters for what may be contained in each post.  A recent article in Inc. Magazine suggested such an approach.

There isn’t a one-size-fits-all approach to social media policies.  But there are three general approaches.

1.    Review and Approve Everything

2.    Monitor and Only Pull Posts That Are Mean or Wrong

3.    Ignore the Whole Thing

The approach that is right for each company depends on its culture and comfort level, as well as its interest in and resources for reviewing and approving.

Besides disclosure of trade secrets, the legal issues are essentially:

  • Defamation/Libel—someone says something damaging and untrue about someone else and the company gets sued
  • Protected Activity—The NLRB recently held that a company who fired a union employee for a Facebook rant against management had violated federal labor laws because being able to criticize management is “protected concerted activity.”   Censorship may also violate your “open door” and other general policies on employee communications and free speech rights could also be implicated if government action or other state laws are implicated.

The way to protect against problems is to give employees broad discretion on what to say, as long as it is true.  Then reserve the right to require that they delete or retract it upon request and at the company’s discretion.

The other thing to understand is the more a company monitors, approves and controls what its employees say in social media, the more likely it will be legally responsible for what is said.  Other factors include whether the statement is made from a company page/account or by a personal user, whether creating social media content is part of the employee’s job duties, and the complete context of the post.  But the more closely controlled and connected the post is to the company itself, the more likely it will be held responsible for its employee’s posts.

If you decide you need a social media policy, there are many good resources online for examples of specific language and approaches to developing a social media policy.  Social Media Governance and  123 Social Media have collected many actual workplace polices you can use in developing your own.

But the real issue with social media policies is branding.  So while it is fine to have HR and the legal department involved in developing a social media policy— make sure it is consistent with your company’s brand and culture.  Call marketing first.

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