Solar Co. Inc., a solar panel manufacturing and installation company, has recently encountered several legal issues related to harassment allegations by employees, mistakenly classifying workers as independent contractors rather than employees, and internal disputes related to employees posting sensitive company information on their personal social media accounts outside of work.

To prevent these issues from happening in the future, Solar Co. is in the process of updating its employee handbook, and the CEO has asked you to draft several pieces of material for inclusion in the handbook with each piece containing at least 175 words. The information needed in the request is identified below:

• A policy related to the prevention of sexual harassment and discrimination including specific action items that will be required of employees and management.
• A section explaining the difference between an employee and an independent contractor.
• A policy that helps ensure workers are properly classified by including specific action items that will be required of employees and management.
• A policy related to employee use of social media such as guidelines related to appropriate content and identification of Solar Co. in any posts including specific action items that will be required of employees and management.

Be sure to include explanations and justifications for each of your policies to help the CEO understand why each one is necessary.

University of Phoenix Material         

Developing Effective Social Media Policies

Social media has provided many marketing, recruiting, and customer service advantages for businesses; however, there are risks as well as benefits with using social media. With the ability for posts and videos to go “viral” within minutes, it is imperative that businesses carefully manage their social media presence.

Likewise, individual employees’ social media activity can reflect on their employers, even when done from their personal accounts outside of the workplace.[1] Some employers routinely search for prospective job candidate’s social media accounts when making hiring decisions, which can also create unintended legal issues. For these reasons, having clear and well-defined social media policies is a modern must-have for any employee handbook. Creating these policies involves many areas of business leadership, including management, human resources, business development, IT personnel and legal advisors, and all should be consulted when developing such policies.

Thinking of worst-case scenarios in advance can be helpful.  For example, imagine that an employee posts a video of him or herself verbally berating a fast-food worker (outside of work hours) on YouTube™ or Instagram™. Although they don’t identify him or herself as an employee of your company, their identity quickly becomes known once the video goes viral. Social media users start urging the boycott of your company until the offending employee is fired. Do your social media policies clearly set forth what should happen to the employee and the grounds for taking such action?

Social media policies should cover three key areas. First, management of the company’s own social media accounts such as who may post content on behalf of the company and the vetting or approval process for content. Second, define the company’s policies for employee use of social media—not just during work hours or using company equipment—including outside of work on the employee’s personal time. Lastly, how does the company use social media when making hiring decisions, and how does it monitor social media activity by employees? Key considerations for each of these issues are addressed below.

Policies for Company Social Media Accounts

• Designate one or more employees or managers who can post to company accounts and who have final review and approval authority over content proposed by other employees or departments. The designated individuals should have a good understanding of the company’s branding, image, marketing strategy, and intellectual property rights. If those individuals will be handling customer service issues, complaints, and various other things, they should be properly trained regarding the use of a positive and professional tone in all responses.

• In addition to protecting your company’s own intellectual property rights, it is also important to make sure that company social media posts or website content does not infringe upon or violate the rights of others. For example, other images taken from the internet should never be re-posted to your company page(s) without verifying who owns the copyright to that image and obtaining their written consent. Your legal counsel should also provide guidance regarding the use of other company names and trademarks within your social media posts, or website content, and when it is permissible to do so.

Policies for Employee Use of Social Media

• With regard to online activity during work hours or using company-owned computers or cell phones, employers have more discretion to prohibit, limit, or monitor employee use of social media. Inform employees that they should not have an expectation of privacy when using company equipment. You should consider the nature of the business and the impact on employee morale and productivity when developing your policy.

• Provide a clear statement that any misuse of social media by employees can be grounds for discipline, including termination. This should take into account your state’s privacy laws (if any) concerning employee social media accounts and be based on advice from legal counsel.

• Distinguish between business and personal use (on-the-job and off-the-job conduct).

• Instruct employees to avoid posting anything that could be considered defamation, obscenity, harassment, discrimination, or disclosure of company trade secrets or confidential information. Confidential and proprietary information may include information regarding trademarks, sales, finances, the number of employees or their identities, company strategy, the development of systems, processes, products, knowledge, technology, and any other information that has not been publicly released.

• Employees should understand that if they choose to identify themselves as affiliated with your company (through a website like LinkedIn™), their profile and related content should be consistent with how they wish to present themselves to colleagues and clients as well as the company’s overall image and reputation. However, employees should be advised not use the company name or logo in their usernames or profile photo unless they are authorized to speak for or represent the company officially.

Limitations

• Be careful; certain information and content may be protected under other state or federal laws, such as protected complaints of discrimination or whistleblowing.

• Also use caution when using social media as part of the pre-employment screening or hiring process. Doing so may result in inadvertent discrimination against a protected characteristic such as gender, race, or sexual orientation that is learned by accessing a candidate’s social media profile. Employers must also comply with the Fair Credit and Reporting Act (FCRA) regarding background checks. Although the FCRA permits the use of consumer reports that contain information gathered from social media, an employer must disclose if any such information results in an “adverse employment decision”.

• Other federal laws that employers should be aware of concerning the monitoring of employee social media activity include the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, laws of which can be violated if an employer circumvents enhanced privacy settings on an employee’s social media account.

[1] Graef, Aileen. “Woman who claims she was fired for flipping off Trump motorcade sues former employer”.

https://www.cnn.com/2018/04/04/politics/woman-flipped-off-trump-sues/index.html. Accessed April 6, 2018. Notably, the company maintains that she was not fired for making the gesture, but rather for violating the company’s social media policy by posting the photo to her social media account.