How To Tell If Your Social Media Policy Is Unlawful

Double check your social media policy!

by Jason Falls |

Editor’s Note: The following is a guest post from Eric Schwartzman, a smart friend and social thinker and co-author of the book Social Marketing To The Business Customer.

So you know you need a social media policy.  But what you and apparently a good number of lawyers may not know is that in the last 10 months, a U.S. Federal Agency has been quietly neutering the social media polices of huge companies with deep pockets.

Why does that matter to social media marketers you might ask? Because getting everyone involved in social media outreach makes it easier to scale engagement. But getting everyone involved without some kind of rules in place is risky.

Organizations use social media policies to exert a degree of control.  The problem is, they have a tendancy to try and control a bit too much. Their over reaching has been getting them in legal hot water.

In nearly three-quarters of the cases brought to the National Labor Relations Board, the agency that protects worker’s rights, the Board found 17 out of 23 policies governing the use of social media by employees to be unlawful.

And in the very latest decision on Sept. 25, 2012, a judge invalidated several of the social media provisions in Echostar’s employee handbook. This decision cited a Sept. 9, 2012 judgement against Costco, which struck down the wholesaler’s social media policy. The Costco case was, by the way, the Board’s very first decision on social media policies. This is the first time that decision was cited as a legal precedent.

So let’s learn from their mistakes. Based on the published NLRB guidance and decisions so far, here are three things to be conscious of when you draft a social media policy:

1. Confidentiality – In the old days, employers often restricted employees from sharing confidential company information without prior written approval.  But today, we use social media to communicate, organize and build consensus with our peers, and we do so by sharing. Payroll information could be considered “confidential” by the employers, but in a recent case against Costco, the Board found that prohibiting employees from sharing wage information infringed on their protected rights to bargain collectively.  You can protect trade secrets, intellectual property and proprietary information. But be careful not add overly broad, nonspecific confidentialty clauses to your social media policy.

2. Disparaging Remarks – The Board ruled that Echostar could not stop employees from making “disparaging or defamatory comments about Echostar, its employees, officers, directors, vendors, [and] customers.” And here’s why. The NLRB protects an employee’s right to call out anbd publicize what they see as unfair workplace practices. Employer policies that could have a chilling effect on those protected activities is seen as unlawful.

3. Media Relations – Ask your legal cousel to look into it deeper it this one.  But in striking down these social media policies, in some cases the Board also found that mainstream media relations policies requiring employees to secure approval before speaking with the press also violates worker’s rights, since it could deter them from leveraging the news media to publicize unfair practices in an effort to improve their working conditions. That’s a protected activity.

If you’d like to review the actual guidance and decisions from the NLRB, you can download the PDFs below at:

Remember the basics.  Social media is a communications channel owned by the customer.  And since employees have the legal right to band together to improve their working conditions, be careful not to try and impose ornerous restictions. If you do, and enforcement becomes necessary, you’re soical meida policy probably will not hold up in court.

Eric SchwartzmanEric Schwartzman is an online social media training provider not an attorney. Before your institute a corporate social media policy, consult your attorney. Learn more about Eric at 

About the Author

Jason Falls

Jason Falls is a leading thinker, speaker and strategist in the world of digital marketing and is co-author of two books, No Bullshit Social Media: The All-Business, No-Hype Guide To Social Media Marketing and The Rebel's Guide To Email Marketing. By day, he leads digital strategy for Elasticity, one of the world's most innovative digital marketing and public relations firms. Follow him on Twitter (@JasonFalls).