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In-house counsel grapple with social media policies

In an effort to protect the company online, in-house lawyers are being asked to draft policies that restrict social media use in the workplace — but not so much that they run afoul of guidance by the National Labor Relations Board.

Limiting social networking may neutralize many potential threats that can stain a company, said Brian Skutt, president and CEO of BrainTrust Corp., which specializes in security network support.

In Skutt’s experience, productivity, embarrassment and security threats are the main issues, and the humiliation factor is what most companies will underestimate, he said. If a virus from a social media website was to infect an employee’s computer, the whole company is put at risk, causing a public relations nightmare.

“If it becomes a source of embarrassment or loss of information, it’s not worth it,” Skutt said.

At BrainTrust, “we don’t even allow outside Internet access,” he said.

Other companies take a similarly hard line.

“We have limited employees’ access, not because we want to prohibit them, but because we view this as a security matter,” said Randy Belote, vice president of strategic communications at Northrop Grumman Corp. “Because we are a large supplier of security to the government, we view social media as a possible intrusion.”

While the company itself has a large presence on Facebook, Twitter and YouTube, it has limited its employees’ access to social media for a few years now, Belote said.

However, he said Northrop hopes to unveil a new form of connection among workers soon. It is developing social media tools to be used internally for employees to talk about work, ideas to improve innovation and ways to advance efficiency.

Other employers across Maryland are only beginning to adopt social networking policies.

“We have a very general policy concerning communications,” said Andrew Lapayowker, general counsel and secretary for Rosemore Inc. in Baltimore. “And we’re currently in the process of developing a social media policy.”

The idea has been in the works for about a year, said Lapayowker, who is part of a team of human resources specialists on the project.

“The process has been pretty smooth,” he said. “We haven’t had any issues where social media has been abused or used improperly.

“We want to sharpen our policy to make sure it is consistent with NLRB rules and regulations.”

Lapayowker acknowledged that dipping into the cyber world does present productivity and employee relations problems, both of which are reasons why Rosemore has not expanded into social media.

Currently, the company does not market itself on Facebook or Twitter.

H. Ward Classen, deputy general counsel of Computer Sciences Corp. in Hanover, noted that in addition to releasing confidential information, workers who post about the job online can hurt a business in other ways.

“Do you want employees saying bad things about your company?” Classen said. “That puts the entire reputation at risk. And if you have people making false, libelous statements about other people, it can become a very, very difficult challenge to manage all the different issues.”

Classen said his company sets forth common-courtesy guidelines for employees, like not releasing proprietary information about the company, its finances, vendors or clients online.

“You ask people to use their good judgment and common sense,” Classen said. “As we know, that doesn’t always drive everybody’s behavior.

In shaping a set of guidelines used for social media, companies need to ensure that they are acting within the law.

On May 30, the NLRB released its third memo in less than a year concerning the legality of online restrictions, adding to the guidelines companies can follow by when drafting social media policies. According to Solomon, the three memos serve as an additional resource for procedures concerning social media in the workplace.

In the memo, Acting General Counsel Lafe Solomon highlighted cases where social media limitations could violate the the National Labor Relations Act. As in the two prior memos, Solomon maintained that instituting overbroad policies can potentially infringe on employees’ rights.

In one case, Solomon described the problems he had with a motor vehicle manufacturer’s guidelines.

According to the company, “employees are instructed to be sure that their posts are ‘completely accurate and not misleading and that they do not reveal non-public information on any public site.’”

Solomon found the policy to be too vague, and noted that different interpretations of the clause could be viewed as violations of section seven of the NLRA, which gives employees the right to engage in discussions “for the purpose of collective bargaining or other mutual aid or protection.”

Solomon found similar problems in six of the seven presented cases.

To avoid infringing on employee privacy, Classen said his office does not track employee activity on social media websites, calling it an impossible task due to the sheer number of sites online. Action is only taken if another employee informs them of inappropriate content posted online, Classen said.

Rosemore has taken the guidelines and “reviewed them for the policy in the works,” Lapayowker said.

While the company plans to adopt a few lessons from the memos, its upcoming policy will not be entirely inspired by the NLRB.

“The one thing that’s very clear from each of the memos is that the decisions are very fact-specific,” he said. “But, it’s difficult to read all three memos and come up with a singular theory.”