We’ve all seen the YouTube videos. The boy taking a bath in the Burger King sink. The Golden Corral manager who was allegedly hiding expired food from health inspectors. The, um, grossness of the adolescent fantasy the Domino’s Pizza employees. Employees who “go rogue” on social media and do damage to their employer’s brands on social media.

Copyright: radiantskies / 123RF Stock Photo
Copyright: radiantskies / 123RF Stock Photo

It’s a question that I and the other franchise attorneys at Fox Rothschild get a lot: what can we do to attempt to head off employee social media activity that might be harmful to the brand? The answer is that you need a written social media policy that is effective and legally enforceable. As my colleague Christina Stoneburner noted in an article written for Inside Counsel, you need to be careful when drafting such a policy. Recent court decisions tell us that social media posts by employees meant to be private are just that: private. An employer cannot coerce its employees to provide passwords to private sites. Similarly, the NLRB has determined that one employee simply “liking” another employee’s post on social media may be “concerted activity”.

Nonetheless, you need a policy. Without one, you are open to any number of attacks respecting random and/or disparate treatment when you go to reprimand an employee. A good social media policy should include the following elements:

  1. Advise employees that social media posts, especially those about the brand, may be monitored so that employees cannot claim that they had a reasonable expectation of privacy in the posts.
  2. Address whether and how posts may be made using company equipment. This is a delicate point. You can ban employees from using company equipment to post on social media, but you may not want to have such a ban, especially if you wish to encourage employees to make positive posts about the brand on company equipment.
  3. Clearly define “confidential information” and prohibit its disclosure. A detailed, itemized definition of “confidential information” is more likely to be upheld by a court or the NLRB than some generalized statement about “company business”.
  4. Clearly define and prohibit the use of bullying, threatening or discriminatory comments against employees, customer, or vendors.
  5. Encourage employees to promptly report posts they find offensive or discriminatory, state that all such reports and complaints will be investigated, and investigate them promptly.
  6. Bar employees from engaging in illegal activity online.
  7. Prohibit employees from defaming or disparaging customers.

Importantly, your system needs to ensure that franchisees are required to have their own social media policies as well. It doesn’t need to be the same as the franchisor’s policy, but it should be similar and, of course, be geared to brand promotion and protection. Sometimes I’m asked if it is okay for the franchisor to draft a “model” policy for its franchisees. Generally, I don’t have any objection to making such model or example policies available for use by franchisees. The key, remember, is that the franchisor cannot retain the power to enforce the policy against the franchisee’s employees–that is the responsibility of the franchisee. (Of course, the franchisee itself could be reprimanded for failure to enforce the policy, so long as that requirement has been made part of the franchise agreement.)

Before putting it into effect, we recommend that you discuss any social media policy with counsel so as to ensure you’ve taken every step to ensure its legality. Moreover, your policy should be regularly updated to reflect both trends in social media and the law. At the end of the day, even the best thought-out social media policy won’t eliminate every rogue post. A well-designed and well-communicated policy, however, will assist franchisors and franchisees at preemptively detering such behavior and again when disciplining the rogues.