Social media, with its ability to reach millions of potential customers with the click of a mouse, can be a marketing boon to companies. It can also present some serious challenges for employers due to the fluid nature of the boundaries between personal and company social media.

In response to these challenges, more states areSocial Media Policy passing employee social media privacy protection legislation. Colorado, Vermont and Utah are among the recent states to enact legislation which prohibits employers from requiring access to personal social media accounts. As social media privacy legislation gains momentum, it's prudent to consider either developing or updating your company's social media policy to make sure it is clear and in compliance with the law.

In this vein, Human Resource Executive Online reports that:

Carla Patalano, professor at New England College of Business and Finance in Boston and chair of the college's certificate of advanced graduate study degree program in HR management, says [a] federal proposal [the Social Networking Online Protection Act], as well as laws passed or in the works on a state level, emphasize the value of effective social-media policies.

"Given the recently issued guidance from the National Labor Relations Board on social-media policies, and their focus on aggressively protecting Section 7 rights for all employees, including those that are not unionized, companies are already focusing on either drafting a social media policy or revising an existing policy to be in compliance," she says.

Attorney J. Mark Poerio and Laura E. Bain raise a crucial point on the American Bar Association's International Law News site:

Despite concerns for employee privacy, employers are discovering that they need to address work-related social networking risks ranging from the theft of trade secrets and client records to overt client solicitation and defamation. All of this raises new questions: Who owns the contacts? What is private? Can "friending" and "linking" activities be considered solicitation? And how far can employers go to protect their legitimate interests? Because the answers vary by region and country, employers should proceed thoughtfully when they seek to protect key business interests at risk from employee social-media use.

In trying to navigate this increasingly confusing world, some industries turn to a regulatory body for guidance. Such was the case with the finance industry in 2010. In response, the Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 10-06, which offers guidance on the use of blogs and social networking sites for business and personal use. As recently as a few weeks ago, FINRA announced that it would be doing spot checks to make sure finance firms were in compliance with its guidelines.

So how should HR managers deal with the lack of clarity on this issue? Poerio and Bain recommend that companies take the following steps to protect their interests:

    • Establish sole ownership of business-related social media accounts, websites, blogs, and other protectable interests (e.g., trade secrets and customer lists);
    • Control the password for employer media accounts and change it when key employees depart;
    • Establish "use policies" to designate which employees have authority to access the employer media and what they may do once access is gained;
    • Require that key employees execute written agreements acknowledging that, in the United States for instance, for purposes of the 1976 Copyright Act, the content within employer media is "work for hire" and owned by the employer; and
    • Address, also in written agreements, the obligations of a departing employee, both as to employer media and other business-oriented contacts such as those made through LinkedIn.

Be sure to stay compliant with federal and state social medial laws and guidance. A good starting point is contacting your state's labor department and reviewing the NLRB's guidance. It would also be prudent to contact an employment law attorney to review your company's social media policy.

HR360's Forms & Policies section features over 500 sample HR forms, policies and checklists available for downloading, customizing, and printing. And don't forget to download our FREE Federal Labor Laws By Company Size Chart, a simple tool you can use to understand the laws that apply to your company based on the number of employees you have.

Topics: Human Resources, State Employment Laws

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