By some measures, in-house counsel have got it rough. You've got to be masters of all trades, plus you have to keep up with all of the latest trends in each field of law that's relevant for your company.
For example, did you hear about last year's NLRB decisions regarding workplace social media policies?
In one case, a man was fired after trashing his auto dealership on the Internet. He complained about catering choices on Facebook. Then he mocked a customer's crash of a Land Rover. He trashed the company and damaged the brand online. He deserved to be fired, right?
Yes, but only for the Land Rover mocking, the NLRB held. The complaints about catering could amount to criticism of working conditions in an effort to effect change.
Catering complaints are a borderline example, but think of organized pro-union speech online. It's the same thing, different degree. However, mocking a car crash really served no purpose and arguably hurt the dealership's reputation. According to the NLRB, that is worthy of termination.
In other notable NLRB cases, Costco and Echostar had social media policies that prohibited employees from criticizing the company online. Again, they were seeking to prevent their employees from damaging the brand. Your company will probably be seeking to do the same thing with its social media policy. The NLRB wiped out the Costco policy and killed the Echostar policy, according to the Networked Lawyers blog, because the overbroad nature of those policies could restrict protective speech.
What's the takeaway for your social media policy?
Free and protected speech must be protected. Blanket policies are a nonstarter.
Employees should be guided towards constructive criticism about issues relevant to working conditions, salary, etc. It would obviously be preferable for them to discuss these matters offline, but if they must go online, keep it relevant.
On the other hand, the social media policy can restrict speech that simply pokes fun at the employer. The Land Rover example is a good one. So is mocking your company's new product, your boss's wardrobe, or general whining about hating being a blogger.
Whoops. Just kidding.
One final note: You can restrict employees' use of social media on work computers and during work hours. On the other hand, they should be free to use Facebook on their breaks and time off.
- Monitoring Employees (FindLaw)
- 3 Ways Facebook Can Be Used to Investigate, Fire Employees (FindLaw's In House)
- Corporate Use of Internet Memes Could Be Costly (FindLaw's In House)
- Drafting Social Media Policies in Light of Recent NLRB Decisions (FindLaw)