Is Your Social Networking Policy Legal?

In the rush to develop effective and enforceable social networking and social media policies, many organizations have written policies that are sensible on the surface but which are, in fact, both ethical and legal nightmares waiting to happen. Do you know whether or not yours pass either test?

For those of you living in the U.S., the NLRB had now written three reports providing guidance on do’s and don’ts for social networking and social media policies. Though many of you live outside of the U.S., I would suggest that you review these reports as well both because they are thought-provoking and because similar ideas and mandates may well be heading your way at some point.

Even if you live outside the U.S. where the NLRB has no legal jurisdiction, their reports speak to a number of ethical considerations we should all keep in mind. Among these are:

  • The line between protecting an organization’s reputation and the employee’s right to express their opinions and beliefs online is perhaps not  a line at all but, rather, a continuum. How can you write a policy that protects appropriate free expression but still provides reputational protection for fellow employees and your organization as a whole? I think that the NLRB reports provide a number a thought-provoking ways to consider accomplishing that.
  • Yet another continuum is found in the balance between making a policy broad enough to cover both the reputation of your employees and organization as a whole as well as the need to protect internal information and yet still be specific enough to be enforceable. Here again, the NLRB reports may give you some ideas, regardless of your location and, indeed, regardless of your feelings about the NLRB’s stance on these matters.

Long time readers will know that I have long-advocated that a rough policy on social networking and social media is still better than none. After all, one can’t possibly enforce a policy that doesn’t exist. In the rush to develop a policy, however, don’t overlook that case law is still rapidly evolving and your policies are, consequently, likely to need to evolve rapidly over time as well. Hopefully a careful reading of these three NLRB reports, along with any future reports, may well help you think through how you can develop something clear and enforceable that will protect your organization while still allowing both the legal and ethical protections every employee deserves.

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