Erickson’s Blog on Social Networking and the Law

The following was written by franchisEssentials Guest Author, Megan Erickson of the Dickinson Law Firm as follow up to Employer Social Networking Policies that we reposted on this site last week. As you may know, Megan is the author behind the recently launched Social Networking Law Blog.

In response to last week’s post, one of our readers commented, “I look forward to your further insights in this area. It is something that “MUST” be thought out by companies today. They really have two choices. A policy of engagement in the Social Networks or staying out altogether. And if they engage they need to seriously engage their employees and impress upon them how being active in social networking sites means that they are a representative of their company and that in the long term their actions will affect the company’s rep in the world.”

Employer Social Networking Policies: Pre-Drafting Considerations, Part II
by Megan Erickson of the Dickinson Law Firm

As [recently] noted, I plan to write a series of posts addressing social networking policies in the workplace. In [recent post] post, I discussed some things an employer may want to think about before drafting social networking policies — including some things to keep in mind when starting with a sample policy. I’ll build upon that by offering a few considerations here for employers to ponder as they begin thinking about drafting, updating, or maintaining a social media policy. This list is by no means exhaustive, but is meant to help employers focus on personalizing social networking policies (and hence, make them more effective).

* Don’t be afraid to take care of some groundwork before involving an attorney, but focus these initial efforts on identifying the company’s business interests, needs, goals, and expectations as they relate to the policy. This will make your lawyer’s job much easier, and may save your company time and money. For example, if you want to encourage social media use among your employees for marketing purposes, your policy will set the parameters within which your employees operate. The framework for such a policy will significantly differ from an employer whose primary goal in establishing a policy is something else (such as the protection of confidential information).

* Brainstorm how the policy should address both: (1) online activity which occurs on company time or using company resources (i.e., blogging at work, Facebooking on company laptops, etc.), and (2) online activity, regardless of when or where, which may have implications for your business (i.e., complaining about work on personal blog from personal computer after-hours that discloses trade secrets).

* Thoughtfully consider how far the restrictions should go. Keep in mind practical considerations. Not only do many studies suggest it’s not good for morale or recruiting to ban all social networking sites or Web 2.0, an all-out ban will be difficult to enforce. Take a realistic approach, and bear in mind ad-hoc policing could easily lead to selective enforcement issues down the road.

* How do you monitor employee technology use? Federal and state privacy laws should shape your policy.

* Consider quirks of your particular workplace technology that might present special considerations. For example: Do employees have company-issued web-enabled cell phones? Do you want policies addressing text messaging? Pagers? Off-duty conduct on company laptop during non-work hours?

The following was written by franchisEssentials Guest Author, Megan Erickson of the Dickinson Law Firm. Megan recently started Erickson’s Blog on Social Networking and the Law. The blog addresses legal issues relating to social media and Web 2.0. Megan states, “This blog is in its early stages, so I hope you’ll continue to check back as I add content and get a chance to make improvements.”

Rush Nigut, who publishes the blog, Rush on Business, recently posted, “Now that’s a blog that will have a never ending flow of posts. She already has an interesting array of posts… This is one blog I’ll be sure to follow.”

Employer Social Networking Policies: Pre-Drafting Considerations & Dangers of Sample Policies
by Megan Erickson of the Dickinson Law Firm

Employers often want to know more about permissible or effective social networking policies for their employees. Of course, there’s no such thing as a “one size fits all” social media policy for employers, but I think readers might find it helpful if we took some time to address important considerations involved in drafting, updating, or maintaining a policy addressing employees’ online activities. With that goal in mind, I’m going to begin a series of entries specifically tackling some of those issues.

Pre-Drafting Considerations

These issues arise even before the policy drafting begins — so that’s where we’ll start. The planning stage of an employer’s social networking policy defines the later effectiveness of the policy. It may be wise for information technology personnel, human resources professionals, other internal company decisionmakers, and legal counsel to sit down together to determine the employer’s business interests, needs, goals, and expectations under the yet-to-be-drafted policy.

Sample Policies or Model Guidelines: Don’t Forget to Assess the Company’s Unique Needs

It’s important to keep in mind that although model policies or sample guidelines may offer some helpful “nuggets,” those policies derive from unique business considerations – which may or may not align with the business interests of other companies. For example, many employers look to the IBM Social Computing Guidelines – one of the first publicly available social media policies. While I do think IBM’s policies are lovely, all the attention given to IBM’s guidelines (and model policies in general) easily distracts employers and discourages them from carefully analyzing their own unique objectives.

As a technology company, IBM has been motivated to actively encourage employee use of social networking. Other employers probably do not have the same motivations. More than 10 years ago, when most employers were trying to limit employees’ online activity, IBM was encouraging its employees to use, learn, and participate in online activity; the company continues to advocate its employees’ participation in Web 2.0. The overarching business interests of a technology company like IBM (i.e., promoting use of online media for marketing and business reasons) may conflict with the overarching business interests of other employers (i.e., perhaps a greater need to protect proprietary business information).

In sum, if human resources professionals at Acme, Inc. look to a sample policy for drafting guidance, they should always bear in mind that the fundamental principles underlying IBM’s (or anyone else’s) guidelines may not best serve the interests of Acme. At the risk of sounding very “lawyer,” I now point out the obvious: social networking policies, as with most employment policies, require individualized attention and should be specifically tailored to the needs of each employer.

Sample Policies or Model Guidelines: Quality Control

The other problem with examples found online is quality control. Googling “social networking policies” may give an internet user a list of results, but it generally doesn’t disclose things like: who drafted the samples, the employer’s jurisdiction and applicable law, or the business interests driving the policy. In other words, the policy could have been drafted by an idiot, it might address too much or too little, and Company A may be focused on helping its sales team effectively use Facebook as a marketing tool while Company B just wants to keep its associates from divulging confidential financial information on MySpace.

Without properly assessing the business interests and concerns the employer wants or expects its social media policy to address, the resulting policy will be of little value to the employer. Before drafting any guidelines, employers should focus on the fundamental framework for and guiding principles behind their anticipated policies.