Comedian Gilbert Gottfried was fired earlier this month after a series of offensive tweets following the devastating earthquake and tsunami that hit Japan on March 11, 2011, proving once again that the tweet is mightier than the duck!

In the past few months we’ve seen several instances where social media posts have proved detrimental to both employees and employers alike, providing a crude reminder of why it’s so important to have a well written social media policy.

Social media is not going away and as employers and employees alike attempt to navigate the world of social media, mistakes are made and the repercussions can be devastating. So, what should you consider when writing your social media policy?

Employer Liability Issues:

Hostile work environment and Discrimination Claims – Social networking sites provide employees with yet another avenue to engage in inappropriate conduct. Employee posts may include venting workplace frustrations by posting discriminatory statements, racial slurs, or sexual innuendos directed at co-workers, supervisors and managers, customers and vendors.

Defamation Claims – Employers could also find themselves liable for defamation claims based on electronic communications from employees. For example, employee bloggers may create animosity and frustration in the workplace by posting gossip and rumors or offensive false statements about co-workers or supervisors. Employers could also be liable for defamation if a supervisor posts comments about a departing employee.

Disclosure of Confidential or Protected Information – Employees may inadvertently include confidential or proprietary information in a post or they may include enough information for outsiders to piece together protected information.

Child Pornography Requirements – Some states require mandatory reporting by technology employees if child pornography is found on company computers they service. In these cases, employers must ensure that evidence is preserved for authorities if an investigation ensues, including preservation of equipment, emails or files.

Federal Trade Commission (FTC) Guides – Newly revised FTC guides address the issue of “endorsements and testimonials in advertising” by employees. Employers may be liable if employees comment on their products or services on social media sites without disclosing their employment relationship, even if the comments were not sponsored or authorized by the employer.

In addition to these legal risks, employees may harm an employer’s brand or reputation by posting controversial or inappropriate comments or pictures on their own blogs or websites. Consider the YouTube post several years ago by Domino’s employees who were tampering with customer’s food.

If you find an offensive post by an employee, before taking adverse employment action you’ll need to carefully consider if the posts are protected. Legal constraints to be considered include:

The National Labor Relations Act – The NLRA protects employees (even non-union employees) who are engaging in “concerted activity”.  Concerted activity includes employees’ right to discuss the terms and conditions of their employment and even criticize their employer to co-workers and outsiders.

Whistleblower Statutes – Both federal and state whistleblower laws may protect employee posts complaining about conditions affecting public health and safety or potential securities fraud.

Political Affiliations or Activities – Many states protect employees’ right to engage in political activities or affiliations, so employers who seek to take action against an employee for political speech could run afoul of these protections.

Legal Off-Duty Activity – Some states have “legal conduct” laws that protect employees or applicant’s lawful conduct away from the workplace. Such activity may include posting pictures of themselves intoxicated at a non work related, off duty party or event.

So, what should your policy include? A well written, defensible policy should include the following guidelines:

  1. Employees are expected to conduct themselves in a profession manner both on and off duty
  2. Recommendations of current or past employees should be directed to Human Resources
  3. Only individuals officially approved to use company logos or other branding images may speak on the company’s behalf
  4. Employee must comply with all other company policies when engaging in social media and electronic communications.
  5. Employees may not engage in illegal activities such as pirating software or data
  6. Employees may be subject to disciplinary action if their electronic communications violate company policies
  7. A statement that the social media policy is not intended to interfere with an employee’s rights under the NLRA
  8. A reporting procedure for violations of the policy
  9. A management representative designated as a point of contact for questions or concerns regarding the policy and its consistent application
  10. A notice that the company will monitor employee electronic communications

Sound social media policies should also inform employee’s of their limitations, including:

  1. Proprietary or confidential company information
  2. Discriminatory statements about the company, employees, customers or vendors
  3. Defamatory statements

The AFLAC duck may have lost his voice to a tweet, but with a sound social media policy you can minimize the risks associated with engaging in social media activities and capitalize on its benefits.  And, if you think you’re the next voice of the duck – here’s your chance.

Social media is here to stay and as more and more companies turn to social media for business purposes it’s vital that they provide all employees with clear guidelines for its use.