New Regulations Make Social Usage Policies More Imperative

Business and personal usage of social media tools collide; policies take on new urgency

By Dave Zielinski Jun 8, 2010

N​​ew guidelines make it important that employees know their social media policies by heart, said attorney Clyde H. Jacob III, director of the New Orleans practice of law firm Coats Rose, who spoke about the topic during a recent SHRM Online webcast.

Two studies underscore a growing problem. According to the polling firm YouGov, 42 percent of office workers between the ages of 18 and 29 discuss work-related issues on blogs and social networking sites. But an April 2010 study sponsored by the Chubb Group of Insurance Companies found that 64 percent of surveyed organizations don’t have a policy guiding how employees should talk about their companies on such sites.

Given recent developments in social media policies, employers should consider reviewing or updating them, Jacob said.

Disclaimers on Postings

In 2009 the Federal Trade Commission (FTC) issued new guidelines stating that those who endorse products or services on blogs, Twitter or Facebook must disclose any “material connections” they have with the endorsed company, which can include payment or free products and services.

How does this affect employees who discuss their jobs on social networks?

“The guidelines suggest employees must disclose employment relationships when commenting about their employers’ products or services online,” Jacob said during the webcast, titled “What Web 2.0 and Social Media Mean for HR.”

Companies are paying heed. For example, in its social media policy, Best Buy, the electronics retailer based in Richfield, Minn., states: “If you talk about work-related matters that are within your area of job responsibility you must disclose your affiliation with Best Buy. When commenting on the business, unless authorized to speak on behalf of Best Buy, you must state that the views expressed are your own.”

In a presentation to the IAPP Global Summit in April 2010, Kimberly Cilke, assistant general counsel for The Go Daddy Group Inc., said company policy is that only authorized employees can post on behalf of the company; all other posts require “personal opinion” disclaimers.

Duty of Loyalty, Disparagement

Employees who disparage the organization or its leaders online can be subject to fines or worse. Jacob points to the case of former San Diego Chargers football player Antonio Cromartie, who tweeted in August 2009 that he thought the poor quality of food served to the team contributed to it not making the Super Bowl in years past. Cromartie, who has since been traded to the New York Jets, was fined $2,500 by the team for his comments.

More recently, a waitress in North Carolina was fired after complaining on her Facebook page about a “cheap” $5 tip she received from a couple who sat at her table for three hours.

“It’s one thing to go home and grumble to your family or friends about your company or boss, another thing to put that commentary online,” Jacob said. “When we talk face to face we tend to be careful about disclosure, but when we are writing online we are often more lax about it.”

Policies should include restrictions against sharing confidential information such as nonpublic operational and financial data, Jacob said, as well as posting video shot from camera phones at company Christmas parties or picnics.

Consider Union Surveillance

Monitoring union employees’ use of social media sites can violate a section of the National Labor Relations Act that prohibits employers from interfering with an employee’s right to engage in union activity, Jacob said. That section includes surveillance of union activities.

A recent administrative law decision is instructive here, Jacob said. In that case a judge ruled that a manager had not participated in surveillance simply by observing union activity on a social media site. But “should he have commented or mentioned to another employee that he had seen something there, that would have constituted surveillance,” Jacob said.

Jacob stated that if companies are going to implement social media policies they might have to negotiate with unions over them, depending on management rights clauses.

Avoid ‘Friending’ on Facebook

The act of employees “friending” other employees on Facebook poses potential legal hazards. Suppose, for example, a manager accepts a Facebook friendship request from a subordinate and at some point comes across information on the subordinate’s profile page related to a medical condition or sexual orientation. If that employee is fired, he or she might have grounds for a discrimination lawsuit based on that manager’s access to personal information protected by state or federal employment laws.

Jacob said that this issue is clear for organizations.

“Under no circumstances do I believe a supervisor should ever ‘friend’ a [subordinate],” he said.

Organizations are increasingly factoring information found on social networks into hiring and other personnel decisions. To provide legal cover for monitoring employees’ use of social media, Jacob said, some companies have candidates or employees sign forms stating that information about them on social sites could be used in those decisions.

Beware Online Recommendations

Giving recommendations to co-workers via social sites raises issues that should be addressed in social media policies and related training.

Consider this scenario: A sales manager “recommends” one of his sales associates through a popular LinkedIn feature that encourages such pats on the back. But a month later that employee is fired. If he files a wrongful termination lawsuit, he might be able to use that LinkedIn recommendation as evidence that his performance was good, Jacob said.

“You want to let employees know it could appear as if the company is endorsing their LinkedIn recommendation of individuals,” Jacob said.

Keep It Professional

Organizations continue to face the problem of “cyber-loafing,” or employees using social media sites during work hours to post updates or keep abreast of friends’ activities rather than for business purposes. Jacob said companies would do well to emulate IBM’s simple but effective policy regarding the issue:

“Don’t forget your day job. Make sure your online activities never interfere with your job or your commitment to customers.”

Dave Zielinski is a freelance writer and editor in Minneapolis, Minn.​​


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