This is the first of five in an article series entitled How to Create a Global Social Media Policy.  It was written by international employment attorney Donald Dowling with Littler Mendelson P.C.

Social media is so powerful that some argue Russian manipulation of it changed the result of a U.S. presidential election. In the employment context, social media is not quite that powerful, but employment-context social media is pervasive, reaching interactions between employers and employees, interactions among co-workers, and staff interactions with the outside world.

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The bright side to employment-context social media—both the big open platforms and internal employee-chat functions on company intranets—is that it facilitates workplace communications. Used correctly, social media can keep staff engaged, connected and informed.

But management inevitably sees a more complex dimension to employment-context social media. The old expression “never pick a fight with someone who buys ink by the barrel” became obsolete when newspapers lost their monopoly on communicating with the public. The new, inverse expression is “everyone with a cell phone is a reporter.” Today, social media empowers everyone from the president of the United States down to rank-and-file laborers to bypass regular news outlets and broadcast opinions, photos and re-tweets directly to targeted groups, be they a given company’s workforce or the entire online “twittersphere.”

Global Social Media Policy Reality

As an example, when America’s former first lady Barbara Bush died, a California English professor on a semester-long sabbatical from her university tweeted that “Bush was [an]…amazing racist who… raised a war criminal. I’m happy the witch is dead. can’t [sic] wait for the rest of her family to fall to their demise the way 1.5 million iraqis [sic] have,” and added that she was dancing “happily on the grave of someone I despise. It’s SO FUN.” As the inevitable “whirlwind of anger kicked up,” the Los Angeles Times (April 19, 2019) reported that the professor “taunted her critics, bragging about her $100,000 salary as a tenured professor…declar[ing]: ‘I will never be fired.’” At a news conference in response, her university employer “ call[ed] the issue a personnel matter,” announced “the university was beginning a review of [these] tweets” that “would involve the university system’s lawyers [and] union representatives,” and asked: “Does tenure mean that you, technically, cannot be fired? The answer to that is no.”

This illustrates that employers have a keen interest in wresting some measure of control over employee social media postings that might implicate, even if just by association, the business, the workforce or the brand. No one knows when the next worker with an agenda or just a poorly-worded opinion will “go viral” with a post linking the company to controversial political positions, criticizing the business, taunting a supervisor, harassing a subordinate, spreading rumors or lies about the brand, disparaging company products, launching a union organizing drive, leaking trade secrets—or haplessly touting company products in a way that violates advertising laws.

A domestic employer in some local country facing these concerns can try to control workers’ social media postings complying with local domestic law. That can be a challenge, because most every legal system respects workers’ off-duty, off-premises “free speech” broadcast on tech devices they themselves own. And so crafting, launching, implementing and enforcing a social media policy in just one country can be tough. But for a multinational employer, the legal compliance issue gets a lot tougher, because the challenge proliferates across all jurisdictions in play.

Here, we address how a multinational headquarters can surmount cross-border legal hurdles and craft a viable and enforceable global social media policy. To explain how a multinational can do that, we answer five questions:

1. Is a single global social media policy viable—or are separate, aligned local policies necessary?
2. Should a global social media policy account for local restrictions under domestic American labor law?
3. How can a multinational control workers’ off-duty, off-premises “free speech” on devices they themselves own?
4. Which topics should a multinational employer account for in a global social media policy?
5. How, logistically, does a multinational launch an enforceable global social media policy across overseas workforces?

Is a Single Global Social Media Policy Viable—Or Are Separate, Aligned Local Policies Necessary?

These days, multinationals issue global HR rules—be they free-standing policies or provisions in global codes of conduct/ethics—on lots of aspects of workplace behavior, like: bribery/improper payments, insider trading, conflicts of interests, discrimination/diversity, harassment/bullying, and more. But because laws in each local country regulate HR topics, any single global HR rule enforceable across multiple jurisdictions that addresses some aspect of workplace behavior must inevitably make compromises or accommodations. Multinationals are usually willing to make compromises and accommodations so they can promulgate a single, uniform global HR rule, policy or code of conduct provision.

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Yet there are certain other topics of human resources which laws around the world regulate so granularly and so distinctly, from country to country, that a single global work rule, policy or code of conduct provision just does not work. Think of paid time off/vacations/holidays, work hours/ overtime, employee benefits, and disciplinary/dismissal procedures. On inherently local topics like these, multinationals tend to revert to local practices (or else multinationals issue one global principle and tailor it locally, say, by issuing a template global policy plus local-country riders or addenda).

Here we focus on employment-context social media rules. Is social media among the human resources topics appropriate for a single global rule, policy or code provision? Or is social media a topic where a multinational is better off issuing separate local HR policies—aligned local policies or a global template plus local riders or addenda? The answer depends on each multinational’s needs and strategies. Most multinationals prefer to issue a single global social media policy, unmodified locally. But crafting a single social media policy to apply simultaneously across multiple jurisdictions— without local riders or addenda—requires compromises and accommodations. Employee use of social media is one of those areas where a localized approach works better.

Any multinational deciding whether to plow ahead with a single but blunt global social media policy or whether to tailor nuanced, localized social media policies, riders or addenda should account for three issues:

• Global policies on other topics: Consider the multinational’s HR rules on other topics across its international workforces. Does the organization host a suite of well-developed global policies and rules? Or do its various overseas subsidiaries go their own way, issuing local work rules, riders or addenda consistent with local practices, on many other topics? An organization that falls on the “lots of unmodified global policies” side of this spectrum can more easily enforce a single global social media policy.
• Social media philosophy: Articulate the multinational’s core values as to employee social media rights and restrictions. Where does the organization fall on the spectrum between supporting employee free speech and championing employees’ right to do what they want on their own time without interference from management, versus locking down employer trade secrets, protecting confidential information and upholding the company’s reputation and brand integrity? An organization that falls on the “free employee speech” side of this spectrum can more easily enforce a single global social media policy.
• Compromises to comply with U.S. labor law: Factor in the inevitable compromises and accommodations in crafting a compliant domestic U.S. social media policy conforming to U.S. labor law. Are those compromises and accommodations so restrictive that the organization is better off bifurcating a watered-down U.S. social media policy from a tougher policy to apply across the rest of the world? An organization less concerned about exporting a watered-down, U.S.-compliant approach to social media can more easily enforce a single global social media policy.

Coming up…

This is the first of five articles dedicated to the topic of creating a global social media policy.  Each article will be published on a weekly basis.  Other articles include:

• Should a global social media policy account for local restrictions under domestic American labor law?
• How can a multinational control workers’ off-duty, off-premises “free speech” on devices they themselves own?
• Which topics should a multinational employer account for in a global social media policy?
• How, logistically, does a multinational launch an enforceable global social media policy across overseas workforces?

This piece is largely based on an article originally published by Littler Mendelson, P.C., who holds the copyright.  It can be read here.

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