February 27, 2014

The legal and regulatory framework for corporate social media policies is still being formed as more cases are being brought before courts and regulators. Currently companies have to take into consideration a range of different regulatory guidelines and laws, including the National Labor Relations Act, anti-discrimination laws, FTC guidance and different regulatory directives. Those different guidelines and laws can sometimes conflict with each other, making crafting a legal social media policy a task that requires special attention for employers, particularly those in highly regulated industries like financial services, Christine Lyon, a partner at Morrison & Foerster LLP, said at a Practising Law Institute forum on law and social media yesterday in New York City.

“I’ve heard of cases where companies in financial services have told their regulators ‘If I enact this [initiative] then it will conflict with the National Labor Relations act.’ And apparently their regulators haven’t been receptive to that defense,” Lyon related.

With those conflicting interests and cases still winding their way to conclusion, it’s best for companies to think about their policies more as guidelines, Lyon advised. “It’s more about teaching employees how to use good judgement in their social media activities… so you may want to consider implementing a training policy as well,” she noted.

[For More of Our Social Media Coverage: See Related: 2014 Forecast: The Evolution of Social Media in Banking]

Here are some of the keys to forming a set of guidelines that comply with existing laws, rules and regulations:

Protected Speech and the NLRA: Simply put, companies need to start familiarizing themselves with the National Labor Relations Act and its rules regarding employees’ protected speech under the act, Lyon says. The NLRA is typically interpreted very broadly, Lyon warned, and the National Labor Relations Board has already handled a few cases where it has struck down social media policies or reprimanded companies for firing employees for things said or posted on social media.

Any policy that discourages employees from practicing their protected speech on their own social media sites will likely be struck down, Lyon said. Under the way the act is currently being interpreted, policies cannot punish employees for making disparaging remarks about their employer or supervisors, even if the remarks would have gotten the employee fired if they had been said in the workplace. Employees are also able to use the company’s name or logo in social media since it is not being used for commercial purposes, Lyon added.

But companies have more protections when it comes to an employee disparaging its customers on social media. “There is a distinction between don’t disparage our customers and don’t disparage the employer. The employers has more protections in dealing with customer relationships,” Lyon remarked.

Companies can also include guidelines regarding any unlawful harassment on social media, Lyon added.

Using the Company’s Social Media Platform: Employers also have more control over employees’ use of the enterprise’s social media platforms, Lyon said. But companies have to beware not to allow any employees to post anything personal on the company Facebook page or Twitter account, she added. If a company allows its employees to post anything personal on the company’s social media accounts, they open the door to letting employees post just bout anything personal on them, as companies are not allowed under current law to be selective about what personal items employees can post on their company’s social media, Lyon explained.

State Laws and Social Media Credentials: California was the first of about a dozen states that have passed laws limiting companies’ access to their employees’ personal social media accounts. Several other states are considering similar measures, Lyon noted. Under those laws companies have to be very careful about any interaction with employees via social media. For instance, depending on how some of these laws are interpreted by courts, employers might no even be able to friend or connect to an employee on social media through the company’s accounts.

Many of these state laws have yet to be litigated, Lyon commented, and cases involving them will be working their way through the courts over the next few years. And some of these laws include exceptions in cases of unlawful activity like harassment, she added.

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ABOUT THE AUTHOR
Jonathan Camhi is a graduate of the City University of New York's Graduate School of Journalism, where he focused on international reporting and interned at the Hindustan Times in Delhi, ...