Developing a Social Media Policy — Dos and Don'ts

By Holly C. Pomraning and Kenny W. Hoeschen

Social media (or social networking or Web 2.0) is not a fad. Your employees are using it, and you need to develop a social media policy so employees and management understand the proper use of various social media tools. The goal should not be to stifle use of social media, but to protect the company's interest while minimizing potential risks. Each company's policy will be different depending on how your company uses and intends to use social media. Work with your attorney to design an individualized policy.

Some general guidelines follow:

  • Do understand your company's need for a social media policy. Increasingly, social media is an integral part of many employees' lives. Before developing a social media policy, you should understand how your company and employees use social media, especially if employees are using it to enhance their professional reputations.
  • Do define "social media" broadly. The definition of social media (http://en.wikipedia.org/wiki/Social_media) is a moving target. Years ago, it meant personal profile pages like ones on Myspace (http://www.myspace.com/) and Facebook (http://www.facebook.com/). Today, it includes one-line updates, or Tweets (http://twitter.com/), and checking-in at local hotspots via Foursquare (http://foursquare.com/). What is next, we do not know, so include language in your policy that acknowledges unknown future trends.
  • Do describe the overall scope of the social media policy and how it relates to other company policies. This policy should mirror and enhance existing company policies and conduct codes.
  • Do set guidelines for internal computer use generally. Employees should know that:
    • If it is done on a work machine, it belongs to the company.
    • Content produced on work machines is not private.
    • Content produced at work or on a work machine may be monitored.
  • Do set guidelines for outbound communications. Employees should:
    • Exercise care in drafting all communications, whether personal or professional. Social media is regarded as public, (http://tinyurl.com/4zzrgt4) so pause before posting.
    • Never post inappropriate content. This includes any illegal or illicit behavior whether depicted in words, links, or photos.
    • Never comment on the company's legal issues online. This could waive attorney-client privilege (http://tinyurl.com/4l3k4o8) related to those matters.
    • Never post confidential or "trade secret" information, including posts about new products, patents, or updates to products.
    • Avoid endorsing (http://tinyurl.com/yebs38f) people or products online.
    • In general, employees should not hold themselves out as representative of the company when posting.
    • Establish an approval and moderating process for any employee who wishes to hold himself or herself out as representative of company (for example, if an employee writes a professional blog).
  • Do allow employees to ask questions and ultimately sign the policy.
  • Don't discipline employees for social media policy violations without consulting your attorney. The law regarding overreaching social media policies is developing. For example, the NLRB recently took the position (http://tinyurl.com/4mshabo) that an employee's disparaging remarks about her boss on Facebook constituted "protected concerted activity" under labor law and therefore, related discipline was impermissible. That case settled, so the law remains unclear. Accordingly, employers must tread carefully and consult an attorney before issuing discipline related to social media use.
  • Don't view social media profiles without authorization. Never attempt to hack into a Web site, ask a third party to give you access to a page, (http://tinyurl.com/cgwgwr) or misrepresent your identity, or coerce someone into giving you a password (http://tinyurl.com/4zzb38m) to see a social media page.
  • Don't consult social media sites when making hiring decisions. Social media profiles are filled with personal information (sex, race, religion, sexual orientation, marital status, age, disability, and so forth) that could form the basis of a discrimination-in-hiring lawsuit. Protect your company by having a consistent policy of avoiding social media when screening applicants.

Employer Still Liable If Discriminatory Action of Supervisor Has Only "Some Direct Relation" to Termination

By Anita Sorensen

A decision of the United States Supreme Court this week makes even more clear that to avoid liability under some federal employment discrimination laws, an employer's human resources department should complete a thorough, independent review of the facts before making a termination or other adverse employment decision. If that employment decision is influenced in some direct way by a biased supervisor who has acted to cause the negative employment action, the employer may be liable.

In Staub v. Proctor Hospital (http://tinyurl.com/497s5wv), No. 09-400 (March 1, 2011), Mr. Staub was a member of the U.S. Army Reserve and an employee of Proctor Hospital. His two supervisors resented his membership in the Reserve and particularly the time he spent away from work for training. According to Mr. Staub, they were "out to get him" and made up a work rule that he must remain at his workstation unless he was caring for a patient. Before he could leave his workstation, he had to notify one of the two supervisors. Around the same time, one of Mr. Staub's coworkers complained to the hospital's human resources department that Mr. Staub was often unavailable. The supervisors also soon informed human resources that Mr. Staub had violated the reporting rule. The human resources manager reviewed Mr. Staub's file and decided to terminate him. Mr. Staub objected, saying he had complied with the reporting requirement and that the supervisors made up this reporting rule because they were hostile to his military obligations. The human resources manager did not follow up on Mr. Staub's claims and instead upheld the termination.

Mr. Staub filed a lawsuit under the Uniformed Services Employment and Reemployment Rights Act of 1994 (http://tinyurl.com/4pma6hw) (USERRA), which prohibits employers from acting against an employee or job applicant because of that individual's military membership. An employer is liable if the employee's membership in the military is a "motivating factor" for termination or other negative action against the employee. A jury found that Proctor Hospital had violated USERRA in terminating Mr. Staub. The United States Circuit Court of Appeals for the Seventh Circuit reversed, and ruled that the bias against the employee's military affiliation must be the "singular influence" over the employer's action to trigger liability. Because the human resources manager had looked at Mr. Staub's file and heard earlier from a coworker that Mr. Staub was away from his workstation frequently, the Court of Appeals found the employer had conducted a sufficient independent investigation before terminating.

The Supreme Court disagreed. The Court found that human resources' review of the employee's file and the earlier discussion with the coworker did not protect the employer from liability. The termination decision still had "some direct relation" to the actions of Mr. Staub's biased supervisors, and that is sufficient for liability under USERRA. The supervisors' actions were not remote or unrelated to the termination, and human resources did not follow up on the employee's claims of bias before terminating.

In addition to claims under USERRA, the Staub decision is likely to apply to discrimination claims under Title VII. Further court decisions may provide more information about what is a sufficient independent investigation by the ultimate decisionmaker to avoid liability. In the interim, a thorough review of the facts and follow-up on claims of bias is essential before the employer makes a termination or other adverse employment decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.