Apr 12, 2011

Is Your Social Media Policy Unconstitutional?

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If your social media policy restricts employees from criticizing your company on social media, you definitely need to read this.  And you need to read it carefully. Because it could save you a lot of money, and a lot of aggravation.

March 5th 2008 - Everyone should give themselves a slap on the wrist sometimesAccording to a story by Steve Greenhouse (@greenhousenyt) of the New York Times, the National Labor Relations Board threatened to sue Reuters last week for reprimanding an employee for using her Twitter account to publicly criticize the company.

The employee, Deborah Zabarenko (@dzabarenko), who is also the head of the Newspaper Guild at Reuters, posted the following tweet as an @reply to a Reuters corporate Twitter account:

“One way to make this the best place to work is to deal honestly with Guild members.”

She was reprimanded for the tweet by her direct supervisor, who said her public critic could damage Reuters reputation.  But according to the National Labor Relations Board, which tipped off Greenhouse through an anonymous source, employees have a legal right to engage in public dialogue, however critical it may be, to improve their working conditions.

A Reuters spokesperson replied by saying that the company has a social media policy, but I couldn’t find anything that applies to how employees can use social for internal communications.  Erin Kurtz (@eekurtz), Reuters Head of Publicity has not yet responded to my email asking for clarification, but if she does, I’ll definitely update this post.

No compliant has yet been filed, and according to Greenhouse, the National Labor Relations Board has been known to threaten legal action as a way of forcing out-of-court settlements.  The National Labor Relations Board is a U.S. Government Agency.

The issue of whether or not employees can publicly criticize their employers via social media has never been tested in U.S. Federal Court.  Greenhouse notes that in November 2010, a Connecticut ambulance company settled out of court with the NLRB for firing a worker who posted a Facebook status update critical of her supervisor.

And while the amount of that settlement was undisclosed, the two incidents may warrant revisiting your company’s social media policy to see of you’ve got any language in there that could be seen as restricting your employee’s rights to free speech.

In my Social Media Policy Template, in my section of confidentiality, I have an item that reads:

External social media channels should not be used for internal business communications among fellow employees. It is fine for employees to disagree, but please don’t use your external blog or other online social media channels to air your differences publicly.

But given the risks that potentially restricting free speech may pose, you might consider asking your legal counsel about adding the following language:

Worker’s have the right to engage in conversations with co-workers to improve working conditions.

With the use of social networks in business becoming more pervasive, it’s going to get tougher for companies not just to avoid developing an official social media policy, but also to ensure those policies are constitutional.

As social media becomes a common channel of communications, corporations with policies need to make sure their legal staff has the social media literacy to keep them up to date.

We will be discussing this matter in depth in the next episode of the B2B Social Media podcast with Chris Boudreaux who specializes in corporate social media policy development.

What’s your view on this development? Will you update your social media policy as a result?  And if so, how?