Social Media Policy Legal Disputes

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 What is a Social Media Policy?

Companies may create social media policies in order to regulate how their employees and company representatives use social media platforms and websites. The majority of individual employees have at least one social media account for personal use.

The company may also have several social media accounts that are used for the promotion of its business. There are typically two main goals for a company’s social media policy, including:

  • Allowing the use of social media to promote the products or services of the business; and
  • Restricting what information employees can post on their personal social media accounts.

Social media policies can also regulate personal social media use during work hours. The laws that govern social media use are still very new and are subject to changes as the industry continues to evolve.

Company policies on social media often come in the form of a nondisclosure agreement that states what the parties can and cannot do regarding social media.

What do Employment Laws Say about Social Media Posts?

Although constitutional laws grant individuals the freedom to post their opinions on social media websites, employment laws regarding employee protections for social media posts are not as clear. In general, an at-will employee can be terminated for any reason that an employer sees fit, so long as that reason is not discriminatory in nature and does not violate any state or federal laws.

This may include firing an employee who has posted or blogged something negative about:

  • The company;
  • A supervisor; or
  • A fellow co-worker.

Employment laws, in general, do not prevent a private employer from terminating an employee based on a rant, inappropriate post, or related issue. This applies especially in cases where the post is posted in a manner that is viewable to the general public.

What Type of Posts are Likely to Get Someone in Trouble at Work?

Many workplace disputes involve employees being terminated due to inappropriate posts on Facebook, Twitter, and other similar sites. Although every employer may have different policies governing social media conduct, certain types of posts may inevitably lead to negative employment consequences, including:

  • “Caught in a lie” posts, for example, when an employee claims to be sick, but their post shows that they were on vacation during their sick leave;
  • Posting safety and health violations, for example, a fast food employee posting a picture of themselves tampering with food at work;
  • Posting illegal activity or criminal activity;
  • Revealing company trade secrets; and
  • Complaining about a job.

Employees need to exercise discretion when posting information on social media. This is especially true if there is a chance a co-worker or employer may view the post.

Why Should My Company Develop a Social Media Policy?

Most individuals are now connected to at least one social media account for personal or professional use. As noted above, social media laws are newly formed and change frequently.

Many large companies have created social media policies of their own to encourage and monitor social media posts that may impact the company. If a company creates a social media policy for its employees, it can encourage positive social media usage while creating boundaries that all parties are notified of.

How Should a Company Begin to Develop a Social Media Policy?

When a company begins to develop a social media policy, it is helpful to obtain the input of several different individuals. Human resources professionals can provide guidance related to potential employment issues.

The CEO can provide input regarding how the company would like to use its social media accounts. Individuals who have knowledge of social media networks can ensure that the policy is relevant.

Lawyers can provide guidance to ensure that no employment laws are violated. Social media platforms can be powerful tools for companies.

If a company takes an encouraging and friendly approach to social media use, it may be helpful to both the company and its employees.

What are Some Common Issues for Social Media Policies?

There are several potential issues that companies should consider when creating social media policies, including:

  • Considering whether the company wants to promote a healthy use of social media among employees or merely monitor for misuse;
  • Being mindful of employment disputes that may arise from comments or content posted through social media, including pictures and other media;
  • Ownership related to postings and accounts is also a frequent issue, especially in cases where an employee uses a seemingly personal account to post content on behalf of or in promotion of the company.

What Should a Company Social Media Policy Contain?

When a company is creating its social media policy, it should consider the relationship and the presence the company would like to have in the various forms of social media. The following points provide a guide to help create a policy that works with the company’s goals:

  • Remind employees that private and confidential information should not be disclosed. For example, certain policies apply to personal online accounts, including:
  • Provide examples of things that employees should not post. Cover topics such as:
    • inappropriate behavior;
    • substance abuse; or
    • offensive comments that could be attributed to the corporation;
  • Consider all existing social media formats and networks, which may include videos and photos;
  • Be flexible to accommodate new forms of social media;
  • Define ownership of social media accounts and posts;
  • Establish a means by which to monitor and report violations of the policy;
  • Establish a way to respond to and approach negative comments or posts; and
  • Be specific regarding:
    • what is prohibited;
    • what the penalties will be; and
    • how posts will be reviewed.

What are Some Typical Social Media Policy Disputes?

Social media policies may lead to very specific types of legal disputes. Employees may be liable for violating agreements not to make certain disclosures on their social media accounts.

In the alternative, employers may be liable for restricting an employee’s rights related to their social media accounts. Examples of social media policy disputes may include:

  • The unauthorized disclosure of private company information, for example, trade secrets or other sensitive information;
  • False advertising, especially if an employee posts information without performing proper research or without being fully informed;
  • Deceptive trade practices or posts that slander competitors;
  • Unauthorized use of copyrighted materials or other intellectual property that belongs to the company;
  • Violations of Federal Trade Commission regulations; and
  • Disputes involving employee privacy rights, for example, an employer demanding that a worker provide them the passwords to personal social media accounts.

The majority of social media policy legal disputes involve a breach of contract or a breach of a confidentiality agreement. It is important to remember that violations and disputes may vary as the different types of social media evolve.

What are Common Remedies for Social Media Policy Legal Disputes?

Policy disputes may result in a monetary damages award to compensate a non-violating party for their losses. For example, if an employee posts a company’s trade secret on their social media account, they may be required to pay their employer for the losses resulting from that disclosure.

Another possible remedy may be the rewriting of the terms of the policy. This may occur in cases where the policy is too restrictive regarding the rights of the employees.

Should I Hire a Lawyer for Help with a Social Media Policy Legal Dispute?

Social media policies are a relatively new concept. However, they share many similarities with other business and employment agreements.

It may be helpful to consult with a workplace attorney if you have any issues, questions, or concerns related to a social media policy. Your attorney can review a policy already in place before you agree to the terms to protect your rights.

If you have any issues or disputes related to the social media policy, your lawyer can represent you in court and help negotiate a resolution with your employer. If you are a business owner, your lawyer can review your social media policy to ensure that it does not violate any current laws.

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