Social Media Policies in the Workplace: It’s All About
Respect
Daniel Handman, Hirschfeld Kraemer LLP
Virtually everyone uses social media. The statistics are just astounding, particularly when
you consider that social media did not exist a decade ago. Facebook boasts 1.1 billion
users; Twitter 500 million users; and LinkedIn 225 million users.
But, the statistic that may be the most shocking is the number of people who use social
media at work. According to a recent survey, one-third of the workforce in the United
States uses social media for at least an hour a day at work, and one-quarter of
American workers would not take a job if their access to social media at work was cut
off.
The widespread use of social media has struck fear into some employers about
decreased productivity, unwanted publicity, and a general increase in exposure for
various work-related claims. But, at the same time, employers also have been able to
harness social media for all sorts of benefits, not only with the products they sell or the
services they provide, but also as a boon to employee morale.
However one looks at it, social media policies are now just as necessary for employers
as discrimination, leave, and vacation policies. Of course, once employers began to
develop social media policies, various government agencies made their voices heard
about what they would not allow in such policies. In some cases, the government’s
guidance has been intuitive and sensible, but in other cases, especially from the
National Labor Relations Board (NLRB), it has been both confusing and selfcontradictory. Because of the NLRB’s lack of clarity, employers have largely been left to
guess whether their policies run afoul of its dictates.
Nonetheless, some basic rules emerge from the chorus of government agencies that
have shown interest in social media, and those rules can be incorporated into any
social media policy. Ultimately, social media policies—like any other policies—are
about respect: respect for an employer’s legitimate needs and respect for an
employee’s privacy. If a social media policy is centered on respect, it will work to
highlight the benefits of social media and to guard against its potential misuse.
THE GOVERNMENT’S VIEW ON SOCIAL MEDIA POLICIES
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A WELL-CRAFTED SOCIAL MEDIA POLICY IS ABOUT RESPECT
Regardless of whether those decisions stand the test of time, at least two basic rules
about social media policies have emerged. First, employers must be careful with the
words they use and the context in which they use them. The various courts of appeal
may well reverse every single ruling by the NLRB on social media, but until the U.S.
Supreme Court rules on the issue—or until a new, more management-friendly NLRB is
Social Media Policies in the Workplace: It’s All About
Respect
Daniel Handman, Hirschfeld Kraemer LLP
empaneled under a different president—the NLRB will continue to interpret social
media policies the same way it has in the past.
Second, social media policies should be centered on one basic theme: respect. This
may well sound backward to many employers. Why, after all, should employers
tolerate, much less respect, a tool that employees can use to engage in widespread,
public criticism about the way they are treated? The answer is actually quite simple.
Every policy in an employee handbook should be focused on a relationship of mutual
respect.
Indeed, several states enacted statutes prohibiting employers from requiring employees
to disclose passwords to personal social media accounts. In so doing, they effectively
codified the notion of respect with employees’ social media usage.
Of course, the most significant impact of social media on the workplace is that it makes
it easy for any employee to make public comments about his job. It is as simple as
typing a hashtag and creating a viral commentary about an employer’s practices. That
gives employees unprecedented power.
Consider this example. A large restaurant chain recently fired a young waiter for
making stupid comments on Twitter about his supervisor.16 In response, the waiter
created a two-minute YouTube video about his experiences at the restaurant; it went
viral; and he now has 382,000 followers on Twitter (@Traphik) and the video has nearly
500,000 YouTube hits. This waiter now has more Twitter followers than famous journalists
Diane Sawyer, Anderson Cooper, or Scott Pelley.
To guard against improper use of that power, employers should ensure that their
policies convey that they will respect their employees’ use of social media, so long as
employees respect them back. So, how can employers accomplish that seemingly
difficult task in a few pages?
A social media policy must convey an expectation that employees will use social
media and, in fact, that employees may well use social media to comment on their
employers. It is not all that different from an email or internet use policy. Most
email/internet policies reflect the expectation that email and internet at work will, from
time to time, be used for personal purposes and that infrequent use, so long as it is
proper, is permitted. The same is true of social media: Employers understand employees
may use social media for all sorts of private purposes, and employees cannot be
prohibited from doing it, but there are certain reasonable rules that employers expect
their employees to follow when using social media.
Those rules must be conveyed clearly and concisely to employees. The word “respect”
is a helpful acronym to summarize those rules.
R—RESPONSIBILITY
Social Media Policies in the Workplace: It’s All About
Respect
Daniel Handman, Hirschfeld Kraemer LLP
Employees must be responsible about three things: (1) the content they post; (2) the
audience their posts reach; and (3) the potential effects of an improper post. For
example, in the wake of the Boston Marathon bombing, a Reuters employee was fired
because he kept tweeting information that the Boston Police Department specifically
asked him not to tweet. This reporter violated all three of those rules: he posted
information that was potentially dangerous to the public; he did so to a wide audience;
and he put the public at risk by doing so. A social media policy needs to inform
employees to be responsible when posting, particularly about sensitive topics.
E—ETIQUETTE
Just because information is posted on social media does not mean that it is absolutely
protected by law. An employee who uses social media to harass, intimidate, or bully
other employees runs afoul of an employer’s legal requirement to maintain a
workplace free of harassment and discrimination. Even the NLRB recognizes that
speech that would otherwise be protected loses that protection when the language
reaches a certain level of profanity and hostility. To that end, the policy needs to
convey that such conduct on social media will not be tolerated.
S—SELECTIVITY
Social media can be used as a means of advancing an employer’s business. Every day,
employees reference new products or services their employers are offering, successful
projects they have completed, and the like. By the same token, when employees see
negative posts about their employer or about work they have done, they feel
compelled to respond. The decision about when to respond, what to say, and who the
responder should be are decisions that need to be made on a corporate level, and
employees need to see that in a social media policy.
P—PRIVACY
The NLRB has attempted to make its presence more strongly felt with respect to the
privacy rights of employees than with any other aspect of social media posts. The NLRB
has long considered employee compensation, work performance of supervisors, and
perceived mistreatment to be subjects that can be protected, so long as they are
discussed for the mutual aid or benefit of other employees. Notwithstanding that, the
NLRB also recognizes that employers have a legitimate need to maintain privacy over
certain information about their employees, customers, and business practices. Among
many other things, a good social media policy will prohibit employees from delving into
truly private matters, such as medical issues, leave, or identifying information about
employees, including Social Security numbers or dates of birth.
E—EFFICIENCY
Social media can be a valuable tool, but it can also be a major distraction for
employees who overuse it at work. While acknowledging that the use of social media is
Social Media Policies in the Workplace: It’s All About
Respect
Daniel Handman, Hirschfeld Kraemer LLP
inevitable, employers should also encourage employees to limit their use of social
media at work. A good social media policy will make clear that although employees
may periodically use social media at work, they will be held to the same expectations
about their performance.
C—CONFIDENTIALITY
Every employer has confidential, nonpublic information: business plans, pricing models,
attorney-client privileged documents and information that could affect the employer’s
stock value. Employers in a service industry almost certainly have sensitive information
about their clients that they are contractually bound to keep confidential. In all
likelihood, employers already have a confidentiality policy pertaining to those items,
and they may also require employees to sign a confidentiality agreement. A sound
social media policy will restrict employees from disclosing that type of information on
any social media site.
T—TRANSPARENCY
The way that employers gain credibility with the outside world in social media is by
being transparent and honest about their posts. Recently, Samsung got into hot water
by paying students to post positive comments about its products and negative
comments about a competitor’s products online—a mistake that is likely to result in a
significant fine from the FTC.17 Transparency has to be a hallmark of a thorough social
media policy: employees must know that when posting about their employer, they must
identify that they are affiliated with the company (i.e., by using #emp or #employee in
their tweets).
THE EVER-CHANGING WORLD OF SOCIAL MEDIA
The challenges employers face in the emerging world of social media may well be too
numerous to identify. But the guiding principles behind a carefully crafted social media
policy are not: employers will acknowledge the rights of employees to use social media,
so long as employees use it responsibly and respectfully.
Social media is a tool. But unlike other tools offered to employees in the workplace,
social media undergoes drastic changes every day. Think about it: in the past 30 years,
how much have telephones changed? Sure, speaker phones and conference calls
were not widely used in the 1980s, and mobile phones changed the world of
telecommunications significantly.
Compare telephones with social media. Facebook was the first real social media site,
and it was created in 2004—less than 10 years ago. In less than a decade, hundreds of
social media sites have emerged (and many have gone offline), and today, anyone
with a smartphone can instantly post his feelings or a high definition video from
anywhere on any topic for thousands of people to see.
Social Media Policies in the Workplace: It’s All About
Respect
Daniel Handman, Hirschfeld Kraemer LLP
Like any policy, even the most carefully crafted social media policy cannot address
every possible threat or benefit posed by social media. It seems as if every day a new,
embarrassing social media story goes viral. But, employers who respect the power of
social media and the freedom that it creates for employees will get respect back and
will inevitably come out ahead.
Daniel Handman is a partner at Hirschfeld Kraemer LLP in Los Angeles, where he represents companies in employmentrelated disputes. He is also the editor of the California Workplace Advisor blog. Handman can be reached at
dhandman@HKemploymentlaw.com or through the firm’s website,http://www.hkemploymentlaw.com.