Debates concerning the pros and cons of social media usage are not new, but have recently resurfaced with more fervor, gaining attention at the national level. The renewed focus on social media usage may serve as a reminder for Institutions of Higher Education ("IHEs") to develop social media policies dedicated specifically to its role in the workplace. Having up-to-date policies and procedures about employee use of social media helps to ensure that confidential information remains secure, that employees meet reasonable expectations when engaging in activity online, and that IHEs are compliant with applicable law.

The use of social media is pervasive throughout our society. Not only has social media become a part of many people's daily routine, but it is also constantly growing and evolving. Thus, IHEs need to develop social media policies that are both as comprehensive as possible (recognizing that there is no possible way to cover it all) and flexible enough to reach issues and areas of concern that arise as new forms of social media do.

Here are some key tips to keep in mind when writing or revising a social media policy for the workplace.

Define Social Media

While it may seem like commonsense what sorts of platforms and activities a social media policy covers, it is helpful to provide a broad definition of the term "social media" with illustrative examples to set forth the policy's scope at the outset. This may remind employees that certain conduct they engage in online, though not directly related to the workplace, can impact the workplace, become work-related, and fall within their employer's social media policy.

Please note however, any such definition should be relatively broad and needs to make clear that it is not exhaustive to ensure that it covers new and emerging forms of social media, even if not referenced directly by name. This prevents an IHE from having to update its policy every time a new app poses potential concern.

Include General Guidelines for Social Media Use; Avoid Broad Prohibitions

Generally speaking, a social media policy is intended to provide basic guidelines on when employees should engage with social media (i.e., outside of working hours, unless otherwise relevant to their job duties) and how employees should behave online. All social media policies should include guidance that other IHE policies, such those prohibiting discrimination and harassment, apply to an employee's activities online. Other guidance to highlight in the policy can consist of things, like being polite, honest, and accurate in social media posts. Additionally, IHEs may advise employees that they should express only their own personal opinions and not represent themselves as spokespersons for the IHE. Indeed, if an employee's work is the subject of their post, and they identify themselves as an employee, the IHE may even consider requiring the employee to include a disclaimer that their views are theirs alone and not necessarily reflective of the IHE as a whole.

That said, a social media policy should not include broad restrictions on employee speech. In particular, IHEs should not prevent employees from discussing the terms and conditions of their employment online because such a prohibition may run afoul of federal, state, and local law, including Section 7 of the National Labor Relations Act ("NLRA"), depending on the employee's position. For instance, under the NLRA an employer typically cannot prohibit employees from featuring information about their workplace or work materials on social media apps, unless the employee discloses confidential information, uses the employer's name to disparage others, or posts photos of coworkers without their consent.

Even so, IHEs may consider adding a disclaimer or savings clause to the end of any social media policy adopted to advise employees that the policy is not intended to impede their rights under applicable law.

Reiterate Employees' Confidentiality and Other Legal Obligations

An effective social media policy also reiterates that employees are required to maintain the confidentiality of trade secrets and other private or confidential information. Similarly, a social media policy should remind employees that they are expected to abide by all other relevant laws when engaging in activity online. This may include financial disclosure laws (as applicable) and can cover the employer in the event that any particular social media app or function is later restricted under applicable law.

Notify Employees That Their Conduct May Result in Adverse Action

For similar reasons, a social media policy should put employees on notice that any conduct that adversely affects their job performance, the performance of fellow employees, or that otherwise legitimately impacts the IHE may result in disciplinary action against the employee, up to and including termination.

Employer-Owned Devices

In the event that employees are provided with communications equipment owned by the IHE, such as cellphones, the IHE may consider taking social media restrictions one step further, and prohibit the use of certain apps on those devices. For instance, in such cases, the IHE's social media policy may ultimately prohibit having any social media apps that collect biometric information, which can also implicate certain state and local privacy laws, on a device owned by the IHE.

Nevertheless, even if IHEs do not want to take these more robust measures with their social media policies, it is worth repeating in the policy itself that employees have no reasonable expectation of privacy in the workplace or when using employer-provided equipment. Thus, the IHE reserves the right to engage in routine and/or random monitoring of employee use of social media and other websites while at work or when using such employer-owned equipment or networks.

Employer-Owned Social Media Accounts

Many IHEs also own their own social media accounts and personas associated with those accounts. If that is the case, the IHE's social media policy should advise employees that they are not permitted to change the username and password associated with such accounts and should only utilize such accounts when expressly authorized to do so.

Employees should further be expected to relinquish their access to any such accounts upon separation from employment. IHEs want to include reference to this expectation in their policy to ensure that a former employee cannot subsequently make a post on their branded social media account with the potential to reach the millions of Americans that engage in social media every day.