Threat Intelligence Blog

Posted September 10, 2012

Many employers have begun to realize that they need to regulate the usage of social media by employees to minimize the risk of events like the release of confidential or proprietary information, violations of intellectual property rights, inappropriate comments from employees, among a litany of others.

In response to the need for additional information, Cyveillance released a Social Media Policy Guidebook. The Guidebook provides recommendations and sample policy language to guide you as you draft your company’s social media policy to avoid the legal pitfalls of social media.

Top 5 Social Media Policy Recommendations:

  1. Address employee use of social media during non-working hours for work-related purposes without prior approval – they could be entitled to compensation including overtime.
  2. Establish a point of contact for questions and tips regarding social media usage. If there is a specific request procedure, outline it clearly.
  3. Establish a training requirement. Training should focus on highlighting the requirements of your social media policy and general cyber safety awareness.
  4. When designing a social media policy, consider it in full and ensure you do not violate the rights of your employees.
  5. “Savings clauses” do not tend to cure overbroad and otherwise unlawful provisions in an employer’s social media policy, because employees would not understand from this disclaimer that protected activities are in fact permitted [McKesson Corp., Case 06-CA-066504].

Sample “savings clause”: This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.

An increasing number of employers have found themselves in trouble for overbroad social media policies under the National Labor Relations Act (NLRA). As social media becomes a staple in company marketing and operations, companies must arm themselves with an effective and well-articulated social media policy to combat these potential liabilities.

The Acting General Counsel (the “AGC”) for the National Labor Relations Board (NLRB) has released a series of reports highlighting social media cases brought before the Board. The last of these reports, released May 30, 2012, reviews a number of policies and the AGC concluded that at least some of the provisions in the employers’ policies and rules were overbroad and, accordingly, unlawful, under the NLRA. The report identifies one policy as lawful, pointing to the policies substantial use of examples of allowed and proscribed behavior.

Action by the NLRB is not the only concern for social media savvy companies. Defamation, discrimination, and privacy are among other significant legal considerations. Social media policies, coupled with employee training, remain the best risk management technique. Employers must keep in mind that as social media grows and evolves, and as policies are reviewed and considered by regulatory bodies, policies and practices will need to be adapted and adjusted accordingly.

Cyveillance has recommended the adoption of corporate social media policies for some time. We encourage employers to review their existing social media policies in light of NLRB guidelines and other legal considerations. For more information on what you need to consider for your corporate social media policies, please click here to download the full Social Media Policy Guidebook.


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