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Utilities need policy on use of social media, attorney tells Legal Seminar

From the October 23, 2013 issue of Public Power Daily

Originally published October 23, 2013

By Jeannine Anderson
SEATTLE—Any company or utility that does not have a policy governing its employees’ use of social media is asking for trouble these days, said Mary Kim Vance of the law firm Baker Donelson in Memphis, Tenn. "Social media can be both shield and sword," she told APPA’s Legal Seminar Oct. 21. 

A tweet or a post on Facebook or a blog can take off and travel around the country or the globe in a flash, she said – sometimes bringing unwanted publicity to employers. 

Vance cited the example of a woman who was at a computer programming conference earlier this year. The woman overheard a couple of men behind her who were joking and making comments that she thought were sexual in nature. On the spot, she took a picture of the men with her phone and put out a comment on Twitter about what they had said. She also commented in her blog. 

The conference organizers quickly met with the two men, who apologized. The matter did not end there, however. The CEO of the company the woman worked for wrote on the company website that although the firm agreed with the employee’s right to report the incident, it did not agree with the way she had done it. The company fired her. The man who had made the offensive comment was fired by his company, Vance said.

"This generated thousands of tweets," she said. Incidents like this "can be broadcast in seconds."

Social media can be used for good purposes, but employees, including managers "can get themselves in a lot of trouble" if they use these media carelessly, she said. "I’ve been on the phone today with not one, but two Facebook issues," Vance said. Both involved executives who took pictures of themselves in the nude and sent them to employees of their companies, she said.

Overly broad social media policies have been ruled illegal
An employer cannot prohibit employees from saying negative things about the company on social media, Vance said. Overly broad social media policies are being struck down in court.

The National Labor Relations Board has taken an interest in social media policies and has been influential in such cases, she said. The NLRB has defended employees’ rights to use social media to complain about illegal work conditions, she said. The agency has done so under Section 7 of the National Labor Relations Act, which says:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..." (emphasis added)

The retailer Costco had a policy that prohibited employees from making any statements that "damage the company, defame any individual or damage any person’s reputation," she said. The NLRB found in September 2012 that this policy was too broad.

Many companies are using WalMart’s social media policy because it has won a stamp of approval from the NLRB and is easily accessible via the Internet, Vance said. 

In its policy, WalMart encouraged its employees to be "fair and courteous," but said, "Nevertheless, if you decide to post complaints or criticism, avoid using statements . . . that reasonably could be viewed as malicious, obscene, threatening or intimidating . . . or that might constitute harassment or bullying." Employees should "make sure you are honest and accurate" and never post "any information or rumor that you know to be false" about the employer, customers, or co-employees, WalMart said. Employees also should take care never to represent themselves as a spokesperson for the company, the policy says. 

The text of WalMart's social media policy is posted on

People should be careful about their use of Facebook and other social media sites, since information posted on such sites can easily find its way to the wider world, Vance said.

A manager does not have the legal right to ask an employee to access a Facebook friend’s account and let him or her see that information because that would be an abuse of authority, she said, but an employee is at liberty to print out information about a fellow employee and give it to a supervisor or HR person. HR personnel often find such printouts have been slipped under their doors after-hours and are awaiting them when they arrive at the office, she said.

A October 2012 survey found that more than 75 percent of U.S. employees visit social media sites on a daily basis while at work, Vance said. The survey found that only 23 percent of employers had a well-defined social media policy and about the same percentage had no social media policy at all, she said. 


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Senior Vice President, Publishing 
Jeanne Wickline LaBella

Editorial Director
Robert Varela

Editor, Public Power Daily
Jeannine Anderson

Communications Assistant
Fallon W. Forbush

Manager, Integrated Media 
David L. Blaylock

Integrated Media Editor 
Laura D’Alessandro