Asked and Answered

Robin Luce Herrmann on Social Media Policies

By Steve Thorpe

Recent rulings by the NLRB on the use of social media by employees have tended to make the issue more, not less, confusing. Many companies are scrambling to revise their policies in light of the rulings, but are afraid of creating rules that will be deemed too restrictive, thus infringing on workers’ rights. Robin Luce Herrmann is a Practice Group Leader of Butzel Long’s Litigation practice, the head of Butzel Long’s Media Group and an expert on social media law.

Thorpe: Give us a brief overview of recent changes in the social media legal landscape.

Herrmann: Many people think that social media is simply about “socializing” — or relationship-building. In fact, social media has become a way of not just marketing, but also transacting business. Because of this, social media use implicates a host of legal issues, including intellectual property, wage and hour requirements, trade secrets, privacy, and many more. The law on these issues in the social media context is developing on a piecemeal basis. Recent rulings and reports by the NLRB highlight the problems that can result. For example, the NLRB concluded that an employer’s policy that prohibited the sharing of confidential information, the posting of intellectual property and the disclosure of personal information about employees was unlawful. Of course, employers also have a duty to protect certain personal information of employees and businesses need to take affirmative steps to protect their intellectual property. The inconsistency and tension here is palpable.

Thorpe: What are the biggest mistakes companies make when formulating their policies?

Herrmann: A very basic mistake companies make is in believing that, because they have a non-union workforce, the recent rulings by the NLRB have no application to them. That simply isn’t true. Employers need to realize that, union or non-union, these rules apply to them.

Another too common mistake is for companies to use policies drafted by their website developer or to “borrow” some (e.g., from the Internet) and use it with a few tweaks. All of a company’s written policies can impact the use of social media by that company, its employees, visitors to the company’s website, and a company’s customers and suppliers. It is important to make certain that all of the policies are consistent and complimentary. So, for example, a company should be looking at its Terms of Use, Privacy Policy, End User License Agreement, and/or Social Media Policy at the same time, along with any Terms and Conditions or Contracts that the company has with its customers or suppliers. Some may be reading this thinking: “Why would Terms and Conditions (Ts & Cs) be important?” Some Ts & Cs prohibit a seller, for example, from divulging the fact that it is doing business with the buyer or “advertising” this fact. In such a situation, the seller needs to think about the contractual repercussions of tweeting that it got a new contract with the buyer. This highlights another common mistake: not looking at the company’s contracts with its customers and suppliers to see whether they contain terms that impact what the company can do with social media and thus require policies/guidelines to make certain these terms are adhered to.

 Bottom line: companies need to take a holistic, coordinated approach.

 Thorpe: Employees use a variety of social media tools including Facebook, Twitter, YouTube and blogs. Is one more of a problem child for companies than the others?

Herrmann: It is not so much that a particular social media tool causes more problems than another. Rather, certain social media tools are more susceptible to particular problems. For example, Facebook and Twitter more often implicate employment issues — this is where you most often see employees talking about the conditions of their employment — so this is an area that the NLRB, for example will scrutinize more. Pinterest and YouTube often implicate intellectual property issues: the use of copyrighted or trademarked material without proper authorization. Defamation and privacy issues typically arise with Facebook, Twitter and blogs. A company should carefully consider which social media tool will be most effective for their business needs and think through how to best manage the most likely issues to arise with that tool.

Thorpe: What cases are making their way through the courts right now that may have an impact on employers?

Herrmann: Part of the difficulty here is that there are a plethora of cases on fairly specific issues being litigated around the country on a really ad hoc basis. All these have the ability to impact what employers are doing. For example, what privacy rights do individuals have in the mobile/smart phones; to what degree can an employee be disciplined for what they say on social media sites. A general consensus really has not yet been developed. And the law is being developed in places outside the courtroom as well — the NLRB is one example. The Federal Trade Commission is also quite active in monitoring whether, for example, tweets touting products comply with “endorsement” rules. And of course, there is also legislative action. Several dozen states have or are considering legislation prohibiting employers from obtaining passwords for individual’s social media accounts. California recently enacted an Online Privacy Protection Act (CalOPPA), which requires an operator of a commercial website or online service that collects personally identifiable information (PII) through the Internet about consumers residing in California who use or visit its website to “conspicuously post” a privacy policy.

Thorpe: How often should companies be revisiting their policies?

Herrmann: We recommend that policies be reviewed at least every six months and also in response to any major legislative or case law developments that occur. For example, a recent decision involving Zappos found that the arbitration clause in its agreement was unenforceable; we urged our clients to review their agreements with this decision in mind.

Can you offer a shout out to any companies that have particularly well crafted policies?

Herrmann: It’s funny — if I were to do that, readers would rush off to review those policies and try to tweak them for their own use, without really assessing their company’s particular needs and issues. My reaction highlights the most critical point for companies to understand — their policies need to be specifically geared to what they are doing with social media/internet commerce and the risks they run as a result. That being said, Coca Cola has a very well drafted, plain language document covering its online social media principles — I recommend it as a style guide.