Everyone is on social media these days, including your employees. Not surprisingly, companies can be held vicariously liable for legal and regulatory issues arising from their employees’ social media use, such as defamatory or discriminatory social media messages to harassing Facebook comments or tweets. Companies are also exposed to employee leaks of sensitive company or customer information, or the improper use of the employer’s intellectual property and trade secrets. These risks exist regardless of whether the employee commits the offense at the office using company-owned computer resources or at home using their personal social media accounts, since they are often identified as an employee of the company in their social media profile.
In light of these significant risks, developing a social media policy makes business and legal sense. In our last article, 10 best practices for drafting a lawful social media policy, we provided practical advice on how a social media policy can assist your company in managing employee social media use in order to limit exposure to costly legal problems and serve as a communications guideline that empowers employees with the information they need in order to use social media in a responsible manner. But what good is a policy if it is not implemented and enforced in a responsible and defensible manner? (Not much, we surmise.)
In today’s social media-driven day and age, simply drafting a compliant social media policy is not enough. After you are satisfied that you’ve drafted a social media policy in a compliant manner, you must take active steps to introduce the policy and any subsequent revisions on a company-wide basis. You should also educate your management, employees, and independent contractors about the policy and offer training through internal staff or outside practitioners who can effectively ensure compliance. Here are some tried-and-true best practices for implementing and enforcing your social media policy in a defensible manner:
Conduct a legal review
Before distributing the social media policy to employees, be sure to have the company’s legal counsel review, update (if necessary), and approve the policy documents. The purpose of a legal review is to ensure that the social media policy addresses and supports compliance with the National Labor Relations Act as well as the laws of every jurisdiction in which the company operates or litigates, addresses all relevant industry and government regulations, and documents employees’ review and acknowledgement of the policy. Outside counsel experienced in this area can assist in your legal review.
Distribute the social media policy to everyone
The policy should be distributed to the company’s summer interns, upper-level executives, and everyone in-between. Employers should also consider whether to distribute the policies to any independent contractors or other persons who may act on behalf of the company. Each person receiving the policy should acknowledge in writing that they have read and understand the policy, and agree to abide by its terms.
Train and maintain
Educate employees through formal training about the restrictions within the policy — this will help create a defensible strategy for enforcement. Companies should also maintain and manage comprehensive records related to their company’s social media policy and training programs, including maintenance of any revisions or additions to policies and confirmation that each employee received and reviewed the policy and attended company training.
Be consistent in enforcing the disciplinary measures
Uniform enforcement of the policy will protect the employer in potential litigation, as it gives employees fewer reasons in support of their claim for retaliatory discipline or discharge.
Ensure the basis for discipline or termination is sound
Companies should not analyze an employee’s social media activity in a vacuum. Before taking action in response to an employee’s social media activity, companies should consider the employee’s past actions and interactions with other employees and the employer to determine the “intent” behind a social media post that, at first glance, could appear to violate the social media policy. Consult with a practitioner experienced with social media employment law if necessary.
Take a deep breath
Before disciplining an employee, the employer should carefully review recent National Labor Relations Board decisions on social media issues from a truly objective perspective. Companies should also consider whether taking action in response to social media activity violates Federal and state whistleblower statutes, state laws that prohibit employers from regulating employee political activities and affiliations, laws that protect “legal off-duty activity,” potential discrimination claims, and relevant case law in your jurisdiction.
An “ounce of prevention” is certainly worth much more than “a pound of cure” (or legal fees to rectify the situation). By carefully implementing and enforcing a compliant social media policy in a defensible manner, you can protect your company from improper and illegal employee social media use.