Digital leaders in business outperform their peers in every industry. Businesses that invest in technology enabled customer engagement and internal operations initiatives are, on average 26%, more profitable and enjoy 12% higher market valuations.2 Given the ease with which they enable collaboration, social media has the potential to supercharge customer and employee communications. © www.ericschwartzman.com

1. This document is provided for general informational purposes only and should NOT be considered
advice. Please refer any legal questions you may have to an attorney from your jurisdiction.
BY EricSchwartzman
BestPracticesWhitePaper
POLICYDEVELOPMENT
COMPLY
SOCIALLY
MEDIA
SOCIAL

2. Table
of
Contents
Executive
Summary......................................................................................................2
Business
Case
for
Social
Media
Policy...........................................................................2
US
Air
Force
Blog
Assessment
Decision
Tree.................................................................3
Empowering
Social
Media
Communications.................................................................5
The
Trust
Gap ..............................................................................................................6
Lawful
and
Unlawful
Social
Media
Policies...................................................................7
Social
Media
Compliance ........................................................................................................................................8
NLRB
Compliance ......................................................................................................................................................9
NLRB
Decisions
&
Guidance...............................................................................................................................10
Case
Study:
Kansas
Regents .......................................................................................10
Case
Study:
Required
Disclosures...............................................................................12
Case
Study:
Olympics .................................................................................................13
About
the
Author.......................................................................................................15

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Executive
Summary
Over the last two years, nearly half of all employers with and without social media policies have had to
wrestle with the misuse of social media by employees (or former employees). During this period, the
number of employers that allowed access to social media at work was around half, and the percentage is
steadily rising. Still, less than one-third of employers trained personnel on the appropriate use of social
media, relying exclusively on punitive actions to gain compliance.1
We live in a world where nearly everyone uses social media. Increasingly, employees are leveraging the
value of social media in the workplace to stay current on industry trends and to collaborate with one
another. Today, anyone with a smart phone and an Internet connection has access to better communication
technology than most organizations can afford to provide their employees. And the break neck pace at
which innovation occurs leaves more employees hamstrung by obsolete, arcane workplace communications
technologies every day.
Since email and voice mail receive slower response rates, employees turn to social media channels to
resolve issues and achieve faster results . In this sense, social media has increased worker productivity
significantly.
Digital leaders in business outperform their peers in every industry. Businesses that invest in technology
enabled customer engagement and internal operations initiatives are, on average 26%, more profitable and
enjoy 12% higher market valuations.2
Given the ease with which they enable collaboration, social media
has the potential to supercharge customer and employee communications.
Business
Case
for
Social
Media
Policy
On social media, reach is a factor of engagement. The more people that like, comment and retweet, the
farther a message travels. Shares that attract the most engagement are also the most visible. When
someone interacts with a post on a social network, they bring their online contacts with them. If any of
their friends engage, the post gets passed along and this is how the viral nature of social media spreads
through “friends of their friends.”
The challenge is that most organizations use their marketing and public relations departments to control
their online social media presence. These organizations regard social media as a sales and marketing
channel, instead of a communications channel, and broadcast promotional, sales-oriented content on the
1
Social
Media
in
the
Workplace
Around
the
World
2.0,
Proskauer
International
Law
Labor
&
Employment
Group,
Nov.
2012
2
The
Digital
Advantage,
Capgemini
and
MIT
Sloan
School
of
Management,
Nov.
2012

4. social web. Not wanting to spam their personal contacts with these messages, their employees are reticent
to engage, and the organization gets minimal returns on their social marketing efforts.
To unlock real value, individuals throughout an organization must use social media, where ever and when
ever appropriate, to do their jobs more efficiently. The promise of technology in business has always been
one of productivity gains, and in this way, social media is no different. It is a way to communicate more
effortlessly and do more with less because it’s easier to collaborate on Facebook than via email, easier to
field customer service inquiries on Twitter than via call centers and easier to build a short list of vendors
using peer recommendations on Linkedin than it is via Google search. With most business
communications and processes, social media can save time and money.
But the very public nature of social media can also pose problems for employers, particularly if employees
have difficulty distinguishing between conversations that can happen in public, and those that need to be
kept private. This is really the main purpose of a corporate social media policy. Once boundaries are in
place, and employees can distinguish autonomously between public and private information, social media
becomes a productivity gain, not drain.
For some, the notion of encouraging employees outside of an organization’s marketing or PR department to
use social media to participate in discussions that wind up on the public record might be considered too
high-risk. To mitigate that risk, employees must be able to distinguish (on their own, to keep pace with the
conversation) between information that can remain on the public record indefinitely and proprietary,
selective information that needs to be guarded. Good corporate social media policies give employees an
easy way to do just that.
US
Air
Force
Blog
Assessment
Decision
Tree
To help US Air Force service members determine autonomously what blog posts to respond to, UASF
Public Affairs created this decision tree. While this chart was designed to provide clear boundaries on
permissible blog posts to respond to, the model can be applied more broadly to social media engagement.

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6. Empowering
Social
Media
Communications
Once employees have the skill and the authority to determine which conversations to participate in via
social media, employers should encourage them to steer all their public communications through these
channels. Direct communication channels, like meetings, email and phone should only be used for
proprietary and sensitive communication.
A common analogy frequently used to communicate the decision making process is a traffic signal, where
red indicates types of communications to avoid, green indicates appropriate communications and yellow
indicates that a degree of judgment is required. Effective social media policies provide a framework for
determining what can and can’t be discussed publicly, without infringing on ones legal rights.
By transitioning public communications to
social media -- where they automatically
generate and leave behind a record that can be
discovered through search engines and shared
through social media -- employers unlock the
real potential of social media for business.
Rather than use it just for sales promotions, the
organization has a way to transfer its
nonproprietary subject matter expertise to the
web, unlocking huge productivity gains in the
process.
The byproduct of all that sharing is a more genuine form of marketing and public relations, because these
communications have archival value online. Instead of relying exclusively on communications fabricated
by marketing and public relations to generate sales, the organization markets itself through its general, day-
to-day business practices. It matures from being a social marketer into a social business.
To get there, employers need a way to manage the risks and capitalize on the opportunities associated with
social media in the workplace. This is achieved by:
(1) Instituting practical, reasonable and enforceable guidelines by which our employees can conduct
responsible, constructive social media engagement in both official and unofficial capacities, and
(2) Making sure employees have adequate social media training opportunities that teach them to
comply with their employers social media usage guidelines.
This whitepaper covers best practices for developing a social media policy at your organization and offers a
Photo by Clay Junell. Some Rights Reserved

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practical solution for enterprise wide training initiatives. It includes a copy of our Social Media Policy
Template to get you thinking about what should and shouldn’t be in your policy and covers recent
regulatory developments employers should be aware of before they issue their policy.
A lawful social media policy with clear-cut, easy-to-follow guidelines is a critical component of any
corporate social media strategy. But since policies are often written in legalese that can difficult for the
layman to decipher, social media training is required to teach personnel how to comply with the rules of the
road. In this way, policy and training are central to managing risk and capitalizing on the opportunities of
social media in the workplace.
The
Trust
Gap
There’s a gap between the degree of trust we have for institutions versus their leadership. It’s wider for
government than it is for business and it suggests that relying exclusively on CEOs and official
spokespeople for external communications is ineffective. People trust CEOs and elected leaders less than
subject matter experts and regular employees.
Though organizations have grown accustomed to front lining their leadership to inform the public, the
research shows this approach doesn’t work. Decentralizing external communications by empowering SMEs
and regular employees to serve as brand ambassadors via social media is a much more effective and
efficient strategy.
In the industrial age, organizations media trained our official company spokespeople. In the information
age, organizations need to social media train their entire workforce. To truly leverage the power of social
media, company wide digital literacy is the answer.
On a global basis, 50% trust companies but only 18% trust their leadership to tell the truth. And forty-one
percent trust government institutions, but only 13% trust government leaders to tell the truth, according to
the 2013 Edelman Trust Barometer report.

8. On a worldwide basis, we have less trust in CEOs and elected officials than we do in the organizations they
preside over. This is nothing less than a full scale crisis of confidence in leadership, signaling the need for
business and government leaders to relinquish their role as the company mouthpiece and decentralize their
organization’s external
communications
apparatus by
empowering their
employees to serve as
unofficial
spokespersons.
For obvious reasons,
social media is the
likeliest channel
through which
organizations can
democratize external
communications.
Most people (64%)
need to hear the same
message three to five
times before they believe it. Leveraging social media to decentralize external communications increases the
likelihood of message repetition.
But since regular employees aren’t always skilled in having conversations that wind up on the public
record, social media policy and training are essential. Most employees never actually read corporate policy,
and if they do, few are likely to understand them well enough to comply. For practical and logistical
reasons, training is most likely to be comprised of self-paced, online social media courses that can be
accessed anytime, anywhere on any device.
Lawful
and
Unlawful
Social
Media
Policies
In 1935, Congress enacted the National Labor Relations Act to protect the rights of employees, encourage
collective bargaining and curtail dangerous workplace policies. The NLRA made it illegal to fire workers
for protesting unfair working conditions, giving way to strikes and picketing. Today, when an employee in
the US believes they have been wrongfully terminated they can file a claim with the National Labor
Relations Board, which has local offices nationwide.
Global
Deck:
2013
Edelman
Trust
Barometer
from
Edelman
Insights

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Over the past 18 months, the NLRB has released a
series of memos on the lawfulness of corporate
social media policies. The memos found most
corporate social media policies to be overly broad
and unlawful. One of the most common offenses
was restricting employees from discussing
“confidential information” such as wages and
working conditions with co-workers on social
media.
In September 2013, the Board issued their first
decision on social media policies, striking down
Costco’s rules and regulations as unlawful.
They stated:
(c) “[s]ensitive information such as membership, payroll, confidential financial, credit card
numbers, social security number or employee personal health information may not be shared,
transmitted, or stored for personal or public use without prior management approval”; and
(d) employees are prohibited from sharing “confidential” information such as employees’ names,
addresses, telephone numbers, and email addresses.
After reviewing Costco’s social media policy, the NLRB found that any work rule that has the potential to
reasonably chill an employee’s right to organize or bargain collectively is unlawful. Employees have a
legal right to complain publicly if they think their employers’ labor practices are unfair. For example, if an
employee complains on Facebook that someone else is earning more than them, and that the basis of that
increase is unfair, that would be considered protected under the NLRA. So if you fire an employee for
disclosing confidential salary information and they file a claim with the NLRB, chances are the employer is
going to lose that challenge.
Social
Media
Compliance
You don’t have to reference the National Labor Relations Act to violate it. If your social media policy uses
language that restricts employees from using social media to “damage the Company, defame any individual
or damage any person’s reputation” the NLRB has made clear that they consider that a restriction to labor’s
protected rights, because it could have a chilling effect on their right to free speech.
(March
1,
1962)
Three
women
hold
signs
at
the
Merchandise
Mart
in
Atlanta,
Georgia,
urging
people
not
to
buy
Judy
Bond
blouses.
Source:
Khell
Center,
Cornell
University.
Some
Rights
Reserved.

10. On the other hand, if those restrictions were subordinated to a clause on sexual misconduct or racial
harassment, they would be allowed, since employees would be able to appreciate the rule in its context.
The takeaway is that the overly broad restrictions (often wrapped into social media policy) are what the
Board opposes. Lawful social media policies must be exacting in their language.
Organizations use social media policies to exert a degree of control. The problem is, they have a tendency
to try and control too much. In nearly three-quarters of the cases brought to the NLRB, the Board found 17
out of 23 policies governing the use of social media by employees to be unlawful.
In a Sept. 25, 2012 decision, an NLRB judge invalidated several of the social media provisions in
Echostar’s employee handbook. The decision cites the Sept. 9, 2012 judgment against Costco, the Board’s
very first decision on social media policies.
NLRB
Compliance
Based on guidance published by the NLRB thus far, here are three critical aspects of policy development to
be mindful of when drafting social media policies:
1. Confidentiality – In the industrial age, employers often restricted employees from sharing confidential
company information without prior written approval. But today, we use social media to communicate,
organize and build consensus with our peers, and we do so by sharing. Payroll information could be
considered “confidential” by the employers, but in the case against Costco, the Board found that prohibiting
employees from sharing wage information infringed on the employee’s protected rights to bargain
collectively. You can protect trade secrets, intellectual property and proprietary information. But overly
broad, nonspecific confidentiality clauses are likely to be seen by the NLRB as unlawful.
2. Disparaging Remarks – The NLRB ruled that EchoStar could not stop employees from
making ”disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors,
[and] customers.” Why? Because the NLRB protects an employee’s right to call out and publicize what
they see as unfair workplace practices. Employer policies that could have a chilling affect on those
protected activities is seen as unlawful.
3. Media Relations – In striking down these social media policies, the Board also found that mainstream
media relations policies requiring employees to secure approval before speaking with the press also violates
worker’s rights, since it could deter them from leveraging the news media to publicize unfair practices in an
effort to improve their working conditions. That is considered a protected activity as well.

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NLRB
Decisions
&
Guidance
• Jan. 24, 2012 Report of the Acting General Counsel Concerning Social Media Cases [PDF]
• May 30, 2012 Report of the Acting General Counsel Concerning Social Media Cases [PDF]
• Sept. 7, 2012 Costco Wholesale Corporation and United Food and Commercial Workers Union
[PDF]
• Sept. 25, 2012 ECHOSTAR TECHNOLOGIES, L.L.C. and GINA M. LEIGH, AN INDIVIDUAL
(Case 27-CA-066726) [PDF]
The NLRB regards social media as a public communications channel. And since employees have the legal
right to band together to improve their working conditions, onerous restrictions by employers should be
considered risky and potentially unlawful. Disregarding this advice is unlikely to result in defensible
punitive action if enforcement becomes necessary.
Case
Study:
Kansas
Regents
When state legislators threatened to cut funding to the University of Kansas because a journalism professor
sent out an angry tweet blaming the NRA for the Washington Navy Yard Shooting, the Kansas Board of
Regents issued a Draconian social media policy to try and deter faculty and staff from saying anything that
could incite scrutiny from elected state officials.
The issue that provoked the Regents to take action was gun politics,
but the concern among educators is politicians could try and control
the conversations about a host of issues of public importance by
threatening to cut funding. The first draft of the Kansas Board of
Regents social media policy caused a ruckus because it jeopardized
free speech and academic freedom. So they set up a working group to
clean it up.
A new draft of the policy was released on May 14, 2014, but critics say it still chills free speech rights and
is an over reaction to an isolated incident, which everyone agrees was protected by freedom of speech
anyway, since the professor sent the tweet off hours from a personal device on his home broadband
network.
The new draft does offer more clarifications, but also makes reference to the “improper use of social
media” without defining exactly what that is.

12. Some reports have singled out the demand that employees not say anything “contrary to the best interests of
the employer” as unfair, since there’s no practical way for an employee to accurately make that distinction,
since those interests are so broad and varied.
But the new draft clarifies “best interests” as “the interest of the employer in promoting the efficiency of
the public services it performs through its employees must be balanced against the employee’s right as a
citizen to speak on matters of public concern” which seems reasonable enough, and is borrowed from a
previous Supreme Court case on government employee free speech.
Social Media Policies for Government vs. Private Sector Employees
Government employees have free speech rights because it is the government that is taking the action to
restrict speech when it makes rules about what employees can and cannot say, but they can impose some,
limited restrictions.
“Government employers can create rules about things employees say publicly in their official capacity,”
says Heather Bussing. “Most speech on social media is not made in any official capacity. The Regents’
policy appears to try to make this distinction, but it is unclear how it will be applied, especially since it was
adopted in response to a professor’s tweet on his own account.”
It should be noted that social media policies for government employees are different from policies for
private sector employees because different rules apply.
Private sector employees have no free speech rights at work because their employers are not the
government trying to restrict speech. They have other rights such as the NLRA, privacy, Connecticut’s free
speech at work law and New York and California’s restrictions on off-duty conduct.. But generally, private
sector employees do not have freedom of speech at work. Also the NLRA, which protects private sector
workers’ rights to organize and bargain collectively, does not apply to government workers, airline or
railway employees.
“Policy should be limited to the workplace,” says Doug Bonney, chief counsel and legal director for the
American Civil Liberties Union of Kansas. “That’s where they [employers] have the authority to regulate
employee speech.”
But whether you’re a public or private sector employer, a looser social media policy reinforced with
mandatory social media training, assessment and certification may be the smarter way to go.

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Case
Study:
Required
Disclosures
Requiring your employees to include a disclaimer in their social media posts that their opinions are their
own is “unreasonably burdensome” and unlawful, according to a federal judge.
The development is just the latest in a series of decisions by the National
Labor Relations Board, which has been progressively challenging
employers to reconsider whether or not they have the right to dictate how
their employees use social media.
The decision to restrict employers from requiring an “opinions are my
own” disclaimer in their social media posts was triggered by an unfair
labor practice charge from a Kroger employee who received a written warning for failing to comply.
The judge found the condition to be “unreasonable burdensome” because of the “subtle risk of chilling
effects” this requirement could have on employees rights to organize and bargain collectively. It’s
impossible to include a disclaimer in a Facebook Like anyway.
While the federal Administrative Law Judge’s decision in nonbinding and requires NLRB approval before
it can be used as a legal precedent, it is nonetheless the most recent interpretation of how the NLRA
enacted by Congress in 1930 governs how social media can be used in the workplace today.
In August 2013, restricting employees from using company logos, photos and video on social media was
called a violation of the NLRA as well, since employees have a right to use company logos when gathering
online, just as they did in the past on picket signs, leaflets and other printed materials.
The specific part of the National Labor Relations Acts which has been seen as protecting workers rights on
social media in Section 7, which prohibits employers from taking actions against employees who get
together to talk about the terms and conditions of their employment.
The bottom line is, you can’t fire someone for trying to improve their working conditions whether they’re
unionized or not. And social networks are where employees go to discuss work these days.
The National Labor Relations Board has interpreted Section 7 as protecting employees from being
disciplined for discussing wages, hours and working conditions with their coworkers online.
As a result, there has been a good deal of uncertainty around what types of restrictions employers can make
over how their employees use social media. Very few social media policies have stood up as NLRB
compliant. The majority of those reviewed by the NLRB thus far have been seen as unlawful.

14. The US Supreme Court is supposed to deliver an opinion on whether or not these Section 7 interpretations
are valid, since they were made by NLRB Judges appointed by the Obama Administration during a
Congressional Recess. But until such a decision arrives, their interpretations are legally binding.
Case
Study:
Olympics
With the issuance of an ill-advised social media policy, the IOC sparked a social media backlash that
tarnished their reputation and actually suppressed televised viewership of the London Games.
Had their policy been even-handed, social media might have helped erase the unfair advantage state-
sponsored “full-time amateur athletes” from Eastern Bloc countries enjoy over self-financed amateurs from
Western countries.
But a social media gag order known as “Rule 40” in their policy eliminated that chance by restricting
athletes from sharing posts that mentioned their own, personal sponsors on Facebook, Twitter, or anywhere
else online.
Here’s the clause that spurred widespread harsh negative criticism:
“Participants and other accredited persons are not permitted to promote any brand, product or
service within a posting, blog or tweet…” [PDF]
The reason this infuriated so many people is because state-funded athletes don’t need to raise money from
private enterprise to support their Olympic bids, which gives competitors from nations like China and
Russia an unfair economic advantage. Competitors from free market economies could have used social
media channels to rally funds and lessen that advantage.
Among US Olympians in particular, the financial pressures of supporting an athlete’s bid can be crushing.
The parents of Gabby Douglas and Ryan Lochte both filed for bankruptcy recently, overwhelmed by the
enormous financial sacrifices it took to get their children to the Olympic Games. Recognizing the
contributions of their personal sponsors via social media would have offered relief. Rule 40 erased that
possibility, resulting in a groundswell of resentment and ill will among almost every free market national
that was paying attention.
The Track & Field Athletes Association, Olympians and fans protested the policy by including the hashtags
#rule40 and #WeDemandChange in their tweets.

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Olympic medalist Dawn Harper tweeted this image to protest the gag order.
What was even more bizarre about the rule was its premise, which assumed that if an athlete used social
media to promote their own personal sponsors that official Olympic sponsors and the rights holding
broadcasters would somehow lose out. This assumption, born out of digital illiteracy, assumed that
visibility is a zero sum game, and that the absence of messages from unofficial sponsors in social media
would make messages from official sponsors more valuable.
But that assumption was flawed. Because as the research showed regardless of the source, discussions
about the Olympics on social media actually drove ratings higher.
Second-screen viewing didn’t seem to diminish participants’ interest in watching the games on
TV…in fact, it increased it.
People who followed the Games on TV plus one other screen watched 52 percent more Olympics on TV
than those who didn’t; people who followed on two additional screens spent more than twice as much time
(105 percent) with TV. And people who watched live streams of events online watched 66 percent more
Olympics on television than people who followed exclusively on TV, according to research from Google.

16. As veteran reporter Suzanne Vranica wrote in a story about the impact of social media on ratings:
“There have been plenty of negative hashtags assigned to NBC’s Olympics coverage on Twitter,
including #NBCFail and #NBCStinks. But on Madison Avenue the hashtag for this Olympics so
far is more like: #NBC$$$$.”
So Rule 40 not only fumbled the chance to level the playing field for all Olympians, it also skirted a ratings
gain. Had the framers of the IOC draconian social media policy been digitally literate, the athletes would
have enjoyed a leveler playing field, spectators would have witnessed healthier competition and sponsors
would have reached a broader audience.
About
the
Author
Eric Schwartzman is a tech savvy corporate communications executive with 30-
years experience advising multinationals, federal government agencies,
entertainment and B2B clients.
He specializes in conducting innovative marketing communications programs,
devising and executing communications strategies that shape popular opinion,
mainstream media relations, primary market research, external communications, internal communications,
influential seeding and crisis management.
Contact him at https://twitter.com/ericschwartzman
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