How to Create a Global Social Media Policy Part 4

Accounting for the Right Topics

Donald Dowling

Social Media Strategy_iPhone wallpaper in yellow and purple covered with social media and other apps

This is the fourth of five in an article series entitled How to Create a Global Social Media Policy.  It was written by international employment attorney Donald Dowling with Littler Mendelson P.C.

Part I can be read here.

Part II can be read here.

Part III can be read here.

Global Social Media Policy

In drafting a human resources policy—even one to apply internationally—the inevitable temptation is to find a good template form somewhere else and just adapt it. But international social media policies are relatively new, many do not adequately account for international issues, and different multinationals take varying approaches to social media rules. Some companies just tuck a terse “social media” clause into a broader global code of conduct while others issue complex global social media policies that run for pages.

Rather than editing some other company’s social media rule, perhaps a better way to craft a global social media policy is to tailor a strategy for each component of the policy. Consider which sub-topics to address and how to address each one, in the way that works best for the particular organization. Eight components or sub-topics can come into play when a multinational crafts a thorough global policy on staff use of social media:

  1. Define “social media” and articulate the organization’s social media philosophy: A global social media policy should begin by defining “social media” to include both public platforms and company intranet communication functionalities. Articulate a definition broad enough to anticipate future platforms.

Then the policy should explain the employer’s philosophy on controlling worker social media posts. Explain how the organization strikes its balance between respecting employee free speech and off-duty liberties versus safeguarding the company’s confidential information, trade secrets, brand identity and reputation.

  1. Explain that the employer actually can control workers’ off-duty/off-premises “free speech” on their own devices: We mentioned that outside the United States, an employer social media policy is vulnerable to attack because it purports to control workers’ off-duty/off-premises “free speech” on devices workers themselves own. Expect overseas employees to believe they have a legal right to say whatever they want on social media, at least as to their postings offduty, off-premises on their own devices.

In “laying down the law” as to employee social media, a social media policy text should diplomatically explain that the employer actually can impose these rules. We analyzed how a multinational can prohibit at least some inappropriate work-related social media posts through the strategy of broadly defining “Company-Affiliated Social Media Posts.” Regardless of whether a multinational embraces that particular strategy or selects a different approach, the text of the social media policy document should deftly send the message that yes, the employer can indeed control staff’s off-duty/off-premises social media speech—even on their personal devices.

  1. List each category of forbidden social media post that triggers discipline: A workplace social media policy must tell workers which categories of social media posts the employer forbids—what kinds of posts trigger discipline. After all, a statement that merely offers recommendations not subject to discipline is just a suggestion, not an enforceable policy, and a broad prohibition of all “inappropriate” behavior is so vague as to be unenforceable. But articulating a list of prohibited postings raises challenges:

– Specificity: No one can predict what inappropriate posts workers will send in the future, but staff need to be on notice of what they cannot post. Precisely defining each category of forbidden social media post is impossible. A social media rule will inevitably be broad and vague, because it has to reach inappropriate social media postings the employer will not be able to anticipate when drafting the rule.

– Bifurcated policies: As already discussed, certain restrictions on social media posts might be void under U.S. NLRA § 7’s unique “protected concerted activity” doctrine. A multinational wanting to impose tough social media rules might decide to bifurcate a watered-down U.S.-compliant policy so it can be free to craft a tougher policy applicable across the rest of the world.

In drafting a global social media policy, consider whether the multinational has a strong enough business case to prohibit posts that:

– Criticize the employer

– Broadcast HR grievances beyond the company HR department

– Advocate for political positions

– Take positions on hot-button social issues

– Express extreme, fringe or inflammatory views or images that put the employer in a bad light by association

– Lie or make false statements of fact, or show reckless disregard for the truth

– Disparage competitors

– Are “business-inappropriate” (if that can be defined)

– Violate copyright and rights of authorship

– Illegally promote company products (advertising laws in the United States and other jurisdictions regulate testimonials, for example when company employees tout their own product on a review site without disclosing their affiliation)

  1. Incorporate—without repeating or truncating—other relevant HR policies including those regarding confidentiality: Employers cannot tolerate staff using social media platforms to leak confidential employer information, trade secrets, customer lists or internal HR data, to breach databases, or to violate omnibus data protection laws like the European Union General Data Protection Regulation. Therefore, many employer social media policies devote a lot of text to the fundamental concern of confidentiality. For that matter, beyond confidentiality, employers cannot tolerate staff using social media platforms to violate data protection or intellectual property laws, to commit antitrust or insider trading violations, to bully, harass or discriminate—the list goes on.

The issue for drafting a workable global social media policy document is repetition, redundancy and accuracy. Any multinational issuing a global social media policy probably already has a full suite of rules, policies or code of conduct provisions on topics that rogue social media posts might breach—the organization’s extant policies on confidentiality, data protection, IP compliance, antitrust, insider trading, bullying, harassment and discrimination. Social media is just another context in which a disobedient worker might violate existing work rules.

A social media policy document gets needlessly bloated if it repeats workplace policies already set out elsewhere (say, if it defines “confidential information” as thoroughly as that term gets defined in a stand-alone confidentiality policy). And a social media policy gets inaccurate if it truncates other workplace policies (say, if it abridges its definition of “confidential information” less thoroughly than the definition in a stand-alone confidentiality policy). To streamline a global social media policy document and to keep it accurate, simply have the policy incorporate, invoke, refer to, cross-reference or link to all other relevant policies and code provisions—without repeating or abridging them. This approach can even apply to the particularly-vital topic of confidentiality.

  1. Address contacts with traditional media: Before social media ever existed, American employers issued succinct traditional media policies instructing staff not to talk to professional reporters about company business, but rather to refer any inquiries from news media over to the organization’s public relations team. As the line blurs between news websites and social media, many employer social media policies address this issue. Some policies go farther and address speeches and articles—setting guidelines for employee public speakers and employee authors who self-identify as employed by (implicitly speaking on behalf of) the organization.
  2. Prohibit solicitation on the chat/social media feature of the internal company intranet: We mentioned previously that American social media policies often forbid workers from using company intranet social media platforms and chat functions to solicit for non-workrelated causes like charities, community activities and selling personal property like Girl Scout cookies—but that the reason for this particular prohibition might be unique to U.S. labor law, and so this rule might not be necessary to impose internationally.
  3. Impose other rules on workers using the internet and tech devices (beyond social media): Beyond social media per se, consider related “employee computer use” topics involving internet access and tech devices. Many multinationals decide to address internet access and tech devices within the context of their social media policies—although these related topics are not strictly part of social media:

– Work-time personal computer use: Many workers spend entire work days in front of internet-enabled computer screens. Management has a business need to restrict staff from spending too much work time on personal social media activity and “surfing the internet.” In the international context, personal computer use during work time actually raises foreign regulatory issues under telecommunications law: In European jurisdictions including Germany, Italy and Poland, if an employer lets staff use the company network for occasional personal communications, the network can be deemed a regulated telecom provider.

– Work on emails, computers and mobile devices off-hours: Laws in France and Germany now try to regulate off-hours work on emails, computers and mobile devices, and indeed off-hours remote work implicates overtime-pay exposure in all countries—so some employer policies impose rules here.

– Inappropriate websites: Employer policies forbid employees at work and on company equipment from accessing, in the workplace and on company-owned equipment, pornographic, racist and other inappropriate websites. The reason for these rules is obvious to Americans, but staff abroad may grumble that these restrictions are puritanical.

– BYOD: The inverse of rules on employee use of company-owned tech equipment is rules on company use of employee-owned equipment—“bring your own device,” BYOD. The most powerful strategy for a cross-border BYOD policy is to keep BYOD genuinely optional. A multinational is far freer to impose binding cross-border BYOD rules when it can prove that each worker who has opted into the tough BYOD policy could have opted out, with absolutely no job repercussions.

  1. Require ex-employees update affiliations on social networks and continue to follow the social media policy: Some employer social media policies contain a provision requiring that “offboarding” staff update their bios on LinkedIn and other sites to reflect they have left the organization. Some rules require updating social media bios on the final day worked (nudged by friendly reminders from a proactive HR team).

Some social media policies purport to extend confidentiality and certain other social media rules to ex-employees’ social media activity after separation. These rules might appear strict, but of course HR policies tend to be unenforceable after employment. Any organization with a business need to control ex-employees’ social media activity should consider adding a social media clause to restrictive covenants, separation releases or non-disclosure agreements.

Coming up...

In the next entry, Dowling will answer this question:  how, logistically, does a multinational launch an enforceable global social media policy across overseas workforces?

This piece is largely based on an article originally published by Littler Mendelson, P.C., who holds the copyright.  It can be read here.

NEXT:  Who Is and Is Not an Expatriate – Click here.

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