Author: by Preeti Khanolkar

Big companies have recently gotten into hot water by trying to govern employee social media use -- but the right way to do this is even more complicated than you might expect, so Gamaustra presents this article, written by an attorney, to help put you on the right track.

So, you are an indie game developer getting close to releasing your first game. Or maybe you are a large company that is ready to launch your next triple-A title. Perhaps your employees have already started talking about your games on Facebook, Twitter, or on their personal blogs. And maybe you are starting to wonder if your employees' online actions can impact your game's success.

Now you are thinking about whether you should revise (or have?) a social media handbook policy. In the game industry, most employees are very tech savvy, so you want to have some sort of policy regulating their social media usage, right? If so, read on for guidance on how to draft your policy with federal labor law and the Federal Trade Commission's guidelines in mind.

Federal Labor Law

Federal labor law applies to both unionized and non-unionized workplaces. This impacts all companies regardless of company size, with limited exceptions. Federal labor law gives employees the right to engage in activities, such as discussing their wages and criticizing their company, which could lead them to improve their working conditions or form a union.

The National Labor Relations Board (NLRB), the federal agency that safeguards employees' rights to unionize, says that social media is a viable method of forming a union. Therefore, if a company's social media policy is too broad (for example, "do not disparage or damage the company online"), then the company risks violating federal labor law because its social media policy might inadvertently restrict its employees' rights to unionize.

The FTC's Endorsement Guidelines

Companies should also keep the FTC's endorsement guidelines in mind -- specifically, the requirement for the disclosure of "material connections" between companies and advertisers/endorsers. Being an employee of a company counts as a material connection (an "endorser") that has to be disclosed.

An employee may not directly receive payment or benefits for writing about the company and its products like an advertiser would; nevertheless, the employee's job security may depend on the company's success. Therefore, a violation of these guidelines would include an employee who tweets that your game is "the best game ever" without disclosing that she works for your company.

Potential Conflict?

Companies cannot have policies that completely forbid their employees from posting "endorsements" of their products and services online because this could conflict with federal labor law. For example, a policy stating, "Do not use social media to discuss anything related to the company and its products/services" is too broad and may signal to employees that they cannot engage in unionization activities.

At first, the NLRB rule and the FTC's guidelines seem like they conflict with each other. On one hand, the NLRB says that a company cannot have a policy that is too restrictive of its employees' social media usage, but then the FTC says that a company should regulate its employees' social media activities. So, what should a company's handbook policy regarding social media usage be? And how can an employee safely talk about their company's upcoming game or hardware via social media?

Luckily, there is a way to comply with both rules: have a policy stating that employees are advised to (or must) disclose their relationship to the company when promoting and endorsing its games/hardware via social media. Such a policy is narrow enough that employees will not think that the policy intends to restrict their unionization activities, yet the policy still encourages compliance with the FTC's guidelines.

How can an employee properly disclose their employment relationship? The good news is that the FTC's guidelines do not require employees to use any special language when disclosing their employment relationship as long as the disclosure is clear and conspicuous. A simple statement such as "I work for Company X and we just released [insert name of awesome new game] and it's awesome" is sufficient. And for Twitter, which limits users to just 140 characters, even a simple hashtag is sufficient (e.g., #microsoftemployee or #ad).

Just make sure that the audience is aware of the employment relationship! It is probably not enough for an employee to have a general disclosure on their "about me" page (or list the company as their place of employment on Facebook/Twitter) or assume that their social media followers know whom they work for and what games/hardware their company and its affiliates produce. To be completely safe, an employee should directly disclose their employment relationship within each separate post that endorses their company's products.

Additional Suggestions Based on Federal Labor Law

In addition to recent NLRB cases, the NLRB has also offered extensive guidance through its Acting General Counsel's reports, which explain the NLRB's current position on social media. Unlike a regular NLRB case, not everything in these reports is the law yet. However, the reports are still very useful because they offer companies cautionary guidance and are very likely to become the law in the near future. Foremost, the reports reiterate that handbook policies must not be too broad; otherwise, employees will think that their right to engage in unionization activities is also being restricted. The reports contain additional useful advice, which I have summarized below.

Give the policy some context: A policy can restrict certain social media activities if the policy provides enough context that employees know that the policy is not meant to restrict their unionization activities. Therefore, a company should try to explain the business purpose behind their policy. The examples below give their respective policies the appropriate context and are therefore lawful.

Provide definitions: Be sure to define ambiguous words that employees could mistakenly believe are restricting their unionization activities. For example, the term "inappropriate communication" could refer to sexual harassment, but it could also refer to communications about wages (which the NLRB explicitly protects) if the term is not properly defined.

There are many other words that also require definitions: misleading, untrue, inaccurate, sensitive, confidential, proprietary, non-public, private, personal, inflammatory, disrespectful, unprofessional, dishonest, unreasonable, objectionable, offensive, demeaning, abusive, damaging, embarrassment, harassment, and defamation. This is not an exhaustive list. When in doubt, define the word clearly.

Use examples: In addition to defining ambiguous words, provide examples. For instance, explain that the term "inappropriate communications" refers to activities such as "displaying sexually-oriented material" or "revealing trade secrets."

Do not require employees to be courteous and avoid conflict when using social media. Employees could interpret such "courtesy policies" as restricting their unionization activities because discussions about unionization are often heated and cause conflict. Instead, be sure to clarify what kind of conduct is not appropriate (e.g., using profanity) through proper definitions and context.

Do not restrict employees from posting about certain topics that federal labor law normally allows them to discuss, such as wages and other terms and conditions of their employment.

Do not restrict employees from using social media at work. Federal labor law allows employees to engage in unionization activities while on company premises as long as employees do it during non-work time (e.g., lunch) and in non-work areas (e.g., outdoor picnic area).

Do not restrict employees from using the company's name, address, or other information on their online profiles (e.g., Facebook) because such profiles serve as a way for employees to find one another online and possibly communicate about unionization activities.

Do not restrict employees from posting pictures of your company's logo, uniforms, etc. because this also restricts employees from posting about their union activity (e.g., posting pictures of coworkers at a union rally wearing pro-union T-shirts that depict the company's logo).

Do not restrict employees' communication with the public and press via social media because federal labor law protects these kinds of communications.

Do not require employees to explicitly state that whatever they post is their personal opinion every time that they post anything about the company (e.g., "Company XYZ doesn't provide us proper benefits. This is my personal opinion, not that of the company").

Do not require an employee to get approval before they can identify themselves as an employee online.

But you may require employees to get the company's permission before they post something on behalf of the company or post something that people could think came from the company directly.

Do not restrict employees from becoming Facebook friends with one another or communicating with one another via social media.

But you may have a policy that prevents employees from pressuring their coworkers into connecting or communicating with them via social media. Just be sure that the policy clearly applies only to harassing conduct and does not restrict employees from contacting one another for the purpose of engaging in unionization activities.

Do not require employees to discuss work-related concerns with their supervisors or managers before they air their frustrations online.

But you may suggest that employees should first try to resolve their work-related concerns using internal company procedures.

Do not rely on a disclaimer to fix an overly broad social media policy that lacks appropriate definitions and context. For example, one company had a disclaimer in their policy stating, "This policy will not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The NLRB says that this may still conflict with federal labor law because employees may not understand what this statement means and will nonetheless think that they are not allowed to engage in unionization activities. In other words, err on the side of being more specific.

That is a lot to take in, so how do you begin? The NLRB has graciously included a full sample of a social media policy in its third report ("It's dangerous to go alone! Take this!"), which is available for free on its website. Search for the Operations Memorandum 12-59 published on May 30, 2012; the sample is on pages 22-24. Use this sample as a starting point and remember to also keep in mind the FTC's guidelines that I mentioned earlier. Happy drafting!

The views expressed in this article are that of the author personally, and should not be attributed to the National Labor Relations Board or the U.S. government. Nothing in this article should be construed as legal advice, and no attorney-client relationship exists between the author and any reader.