Social Media Policy: What should companies do about problematic content?

Have you read your company’s social media policy? If you haven’t, you should. In short, a company’s social media policy is made to protect the company from anything problematic that their employees could post. This content can range from speaking maliciously about the company, speaking on behalf of them, or disclosing private information about the company or clients. Many things included in a social media policy make sense. Why would a company tolerate such negative things from an employee? There are however, times when a company may go too far with what they expect from their employees.

Usual Components

There are some common themes in a company’s social media policy to ensure it is coherent enough to be understood. If a company has a well thought-out policy, it should include:

• Rules & Regulations: How am I expected to act and present myself in online spaces? What conduct is unacceptable to the company?
• Confidentiality: What information about the company am I allowed to share? What am I prohibited from sharing?
• Potential Legal Risks: Am I abiding by all laws relevant to my company when I post?
• Security Risks: Am I using the internet safely in order to protect both myself and the company?
• Brand Guidelines: Does my post and internet persona accurately portray my company’s image? What type of content would fall in line with what my company stands for?
• Roles & Responsibilities: Am I fully aware of what my company wants me to do, and what they don’t want me to do?
• Accountability: Am I willing to accept responsibility for what I post? Do I understand the consequences for social media misconduct?

Issues with Specificity

This may seem straight-forward, but a lot of issues can potentially arise from a poorly-written policy. One of the biggest issues that can arise is from the ambiguity of certain rules. Dubbed blanket rules, these rules are incredibly vague, and leave a lot to be interpreted by the employee.

An example of such a blanket rule can by seen in the City of Laredo’s social media policy for their public servant employees. The first point under their Responsibility section tells employees to “ensure the City’s social media sites are regularly maintained and kept current”.

This may seem like common sense to some, but the ambiguity of the word “current” is indicative of such blanket statements. To be “current” is a subjective idea. Is current maintenance supposed to be once a week? Once every two weeks? What about every day?

Perhaps the answer to this question would be inferred by someone on the job, but as stated before, a good social media policy should be coherent enough so that an employee shouldn’t have to rely on inferring information about their duties and expectations.

This example is relatively benign, but the consequences can be worse when it relates to an employee’s conduct online.

Problematic Content

Now that we have the the basics of social media policy out of the way, let’s talk about “problematic content”, and how it relates to this issue. In this context, problematic content would refer to employees utilizing the internet in ways that could either intentionally or unintentionally harm the brand. One of the most notorious examples of this was Taco Bell’s 2013 PR scandal being widespread enough to make the news.

Although this example is an extreme circumstance, avoiding scandals and PR nightmares brought on by their employees on the internet is the exact reason companies create social media policies. This Taco Bell employee was promptly fired, and rightly so.

But Can Companies Go Too Far?

Of course companies can go too far with their policies. On one hand, we have to respect the right of companies to have a set of standards for their employees. On the other hand though, there is much debate regarding how the First Amendment and individual rights of expression play a factor.

This is where the National Labor Relations Board steps in. The NLRB is a quasi-governmental board that was created by Congress in 1935, with the purpose of ensuring fair labor practices are followed by companies and unions. Most relevant to this subject is the National Labor Relations Act (NLRA). Also passed in 1935, the NLRA has the purpose of ensuring workers the right of association, bargaining, and expression. It inherently protects an employee’s practice of their individual rights without fear of corporate retaliation. You can read the entirety of the Act on their website, here.

How Far is Too Far?

Generally, the NLRB protects two facets of employee speech:

• First Amendment protected speech
• Protected Concerted Activity

Despite the fancy legal jargon, these points simply reiterate the importance of an employee’s rights to expression and association. An employee can never be forbidden to talk about pay, hours, working conditions, etc. The battle between employee and employer can go as far as to end up in the court house.

A case that serves as the classic example of this is named Kennedy vs. Chipotle (2016).

In 2015, a year prior to the case, Chipotle employee James Kennedy of Havertown, Pennsylvania, decided to air his grievances regarding pay on Twitter. Under the tweet of Chipotle replying to a customer thankful for a free meal, Kennedy responded:

“@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?“

Kennedy had decided to take down the tweet after a warning from the restaurant’s management team, but then was quickly fired after circulating a petition asking said management to allow employees their legally mandated breaks.

As both these incidents were taken into account regarding his firing, the court ended up making a critique on Chipotle’s social media policy.

The NLRB ripped into their stringent policies, and found the tweet to be protected concerted activity under the viewpoint of “educating the public and creating sympathy and support” for workers. For further reading, a Daily News article can be found here.

Takeaways

As demonstrated, it is important for a company to create a social media policy that is clear, concise, and in line with the rights of its employees. Any problematic content that comes from an employee must be dealt with in an appropriate manner, of which consequences should be outlined in the policy.

This does not mean however, that companies have complete control over an employee’s personal social media presence.

Society, the law, and companies must learn how to navigate the rapidly expanding world of social media in a way that is fair to all.