Commentary

MoFo Infographic Highlights Social Media Best Practices

The last thing Chipotle Mexican Grill needed was more bad news after its food-safety problems generated headlines across all media. But that’s what happened earlier this year following a huge social media faux pas. It was not the kind of mistake you’re probably imagining — an ill-considered tweet or risqué Snap. Instead, Chipotle’s Social Media Code of Conduct was found to be in violation of the National Labor Relations Act.

The chain had terminated an employee who, among other things, took to Twitter to complain about working conditions and wages at an outlet in Havertown, Pa. By prohibiting employees from making “disparaging, false, misleading … statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors” in its social media policy,  the company was violating rights granted all workers under the NLRA, the NLRB ruled.

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Although Chipotle last week filed an appeal in U.S. District Court in New Orleans, the case is indicative of the type of legal or ethical jam many companies find themselves facing as they open new doors to customers and promote their products and services on social media, according to John Delaney, a partner at Morrison & Foerster and founder and co-editor of the law firm’s Socially Aware blog.

Delaney and his colleagues have put together the “Social Media Safety Guide for Companies,” a downloadable infographic that highlights best practices and the essential components of a risk-reduction strategy any company should have in place.

The lead point is to “adopt a formal social media policy” by drawing input from stakeholders across the company. Delaney concedes that most sophisticated companies already do have a social media policy in effect by now. It might be wise to review it, however, to make sure it does not violate employees’ rights, as Chipotle apparently did. That can be tricky, particularly in industries such as financial services or pharmaceuticals where guidance from industry regulators might conflict with the NLRA. In those cases, Delaney says, most companies will listen to their industry regulators.

The hope is that, over time, industry regulators will develop policies that “will minimize conflict with the guidance that’s been provided by the NLRB,” he says.

“But the second key point we make in the infographic is the importance of conducting education around your social media policy so that your employees really understand the do’s and don’ts, the rules of the road, in using social media,” Delaney emphasizes.

The infographic points out that there are usually two types of employees: first, those who are expressly authorized to post on the company’s behalf, such as marketing department staff; and second, those who are not. The former should receive more intensive training, as there are some subtle legal issues to consider.

Upload a picture of a movie star sitting next to you in a restaurant on your own Facebook account, for example, and there’s no problem. But that same image can draw a lawsuit for violating the star's right to control commercial exploitation of his or her image if it appears on the company’s pages.

Duane Reade learned this lesson the expensive way when it settled a suit by actress Katherine Heigl a couple of years ago. It had posted a freelancer’s photos of her toting the chain’s shopping bags after purportedly “shopping #NYC's favorite drugstore.”

Some other “must-follow” steps, according to the MoFo team:

  • Monitor your Facebook, Instagram and other social media pages, and adopt a Terms of Use or Code of Conduct statement for those pages.
  • Disclose material connections between the company and those endorsing your product or services on social media. (How to do that on Twitter? At the least, have a #sponsored hashtag.)
  • Adopt a privacy policy — especially if you collect users’ personal information or geo-location information.
  • Take advantage of “safe harbors” available to online businesses in connection with user-generated content.

The latter point could protect you from potential liability for copyright infringement claims, or from defamation or other charges that might arise if you are hosting or linking to user-generated content.

Not that you, I or any of your employees would wittingly link to anybody who would use social media to defame anybody or anything, right? Never happens.

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