February 28, 2014

The legal and regulatory framework for corporate social media policies is still being formed as more cases are being brought before courts and regulators. Currently companies have to take into consideration a range of different regulatory guidelines and laws, including the National Labor Relations Act, anti-discrimination laws, FTC guidance and different regulatory directives. Those different guidelines and laws can sometimes conflict with each other, making crafting a legal social media policy a task that requires special attention for employers, particularly those in highly regulated industries like financial services, Christine Lyon, a partner at Morrison & Foerster LLP, said at a Practising Law Institute forum on law and social media yesterday in New York City.

“I’ve heard of cases where companies in financial services have told their regulators ‘If I enact this [initiative] then it will conflict with the National Labor Relations act.’ And apparently their regulators haven’t been receptive to that defense,” Lyon related.

With those conflicting interests and cases still winding their way to conclusion, it’s best for companies to think about their policies more as guidelines, Lyon advised. “It’s more about teaching employees how to use good judgement in their social media activities… so you may want to consider implementing a training policy as well,” she noted.

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Here are some of the keys to forming a set of guidelines that comply with existing laws, rules and regulations:

Protected Speech and the NLRA: Simply put, companies need to start familiarizing themselves with the National Labor Relations Act and its rules regarding employees’ protected speech under the act, Lyon says. The NLRA is typically interpreted very broadly, Lyon warned, and the National Labor Relations Board has already handled a few cases where it has struck down social media policies or reprimanded companies for firing employees for things said or posted on social media.

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