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Editor's Note: In light of widespread remote work in response to the Covid-19 pandemic in combination with well-known concerns about disinformation and a fast-changing news and economic environment, companies should review their social media policies and take steps to deliver the policy throughout the organization.
Adapted from Corporate Practice Portfolio Series No. 91, Social Media Law, Sample Social Media Policy, by David A. Bell, Esq., Matthew Thomas Deffebach, Esq., and Jason P. Bloom, Esq., of Haynes and Boone, LLP
Social media, its types and frequency of use, and the websites through which social media is distributed are changing rapidly. Companies should evaluate their specific concerns and needs for a social media policy and the current state of social media when preparing a policy. However, some general guidelines are set forth below:
⃞ Purpose: The purpose of the policy should emphasize the importance of responsible social networking and generally explain the risks to both the company and employees of improper use.
⃞ Definition: Social media should be defined broadly to include all current social media sites, networks and forums, giving nonexclusive examples of specific social media sites. The definition should also state that, because technology is evolving so rapidly, the policy also applies to current and future forms of electronic communications.
⃞ Scope: The policy should state that it applies to all social media use, whether such use is during working or non-working hours. However, exceptions should be stated in the policy if the company has employees who work or reside within states with off-duty conduct laws.
⃞ Privacy: The policy should remind employees that they have no right to privacy concerning anything that they post online in publicly available forums and that others may view such information posted. The policy also should address the extent to which employees are consenting to the electronic monitoring of their social media usage, consistent with applicable state and federal law.
⃞ Prohibited conduct: The policy should delineate a non-exclusive list of prohibited social media conduct—e.g., do not violate laws, do not make false statements about others, etc. To help avoid claims that the policy is overbroad and violates the National Labor Relations Act, specific examples of prohibited conduct should be given—e.g., do not post information or materials that could contribute to a hostile work environment, such as derogatory comments about an employee's age, race, color, national origin, sex, pregnancy, religion, disability, genetic information, sexual orientation, gender identity, familial status, or other legally-protected characteristic. Further, the policy should be carefully worded to make clear that it does not prohibit protected concerted activity.
⃞ Application to other policies: The policy should state that employees' social media use must comply with other company policies, highlighting any particular policies that involve areas in which social media use creates risks to the company. Examples include, as discussed above, anti-harassment policies, confidentiality policies, and codes of conduct.
⃞ Enforcement: The policy should state that employees may be subject to disciplinary action up to, and including, termination for violations of the social media policy.
⃞ Business use: If a company uses social media for business purposes, specific guidance should be given concerning proper use of social media, which should be separate from the portion of the social media policy discussing personal social media use. This portion of the policy should give employees guidance on how to comply with the Federal Trade Commission Act, prohibit employees from representing themselves as the company's spokesperson, and identify a control person to pre-approve all business use of social media. Employees should be warned that if they choose to endorse their employer's products or services, they should identify their association with the employer rather than post anonymously.
⃞ Reports: The policy should also identify a company representative to whom employees must report violations of the social media policy.
⃞ Questions: The policy should identify a company representative to whom employees may bring questions if employees are unclear whether certain conduct violates the social media policy.