Individuals love to express their ideas on social media. And let’s face it—your employees are probably on social media before, during, and after work hours.

So, what happens if employees express ideas on social media that could impact other employees, the workplace, or the company’s reputation? And what can be done to protect your company’s intellectual property?

Attorney Sharon Toerek, the founder of Toerek Law, who practices intellectual property and marketing law, shared three critical tips when it comes to employees posting on social media and intellectual property.

What is intellectual property?

Intellectual property is any product of the human mind, e.g., inventions, ideas, designs, and creations protected by U.S. law. There are four types of intellectual property: patents, copyright, trademarks, and trade secrets.

Intellectual property usually comes into play on social media when employees post content that may be copyrighted or considered proprietary and/or confidential. It can also include unintentional (or intentional) misuse of trademarks.

Toerek said it is of utmost importance to have a well-defined, documented social media policy in which employees are trained and the policy is enforced.*

Tip 1: Have a social media policy.

Companies should establish social media policies that provide written guidelines of what is and is not acceptable “conduct” on social media as it pertains to the workplace, its brand reputation, and intellectual property.

Policies should include:

  • Roles
  • Responsibilities
  • Regulations
  • Use (publishing and sharing) of copyrighted material, trademarks, and confidential and proprietary information (e.g., trade secrets)
  • Procedures about how to handle social media conflicts/crises, how to report such situations, and deal with disciplinary action

(Need help? Check out this great reference guide from the Society for Human Resource Management: “How to Create an Effective Social Media Policy).

“Surprisingly, many companies don’t have social media policies in place,” Toerek said. “However, it is critical to have rules of the road that everyone understands.”

She recommends developing social media policy as a team effort, including human resources, marketing, legal, and information technology, and making sure it aligns with other company policies, such as internet and email use and expected employee conduct in the workplace.

“Involve various stakeholders to weigh in, so they have a sense of ownership in it,” Toerek suggested. “Once you have agreement on what the policy should address, document it in writing and ensure every employee acknowledges it.”

Tip 2: Train all employees on social media policy and procedures.

Social media training can be incorporated into your annual HR compliance training program to ensure employees understand and acknowledge your social media policy.

Toerek recommends employers train employees in three key intellectual property areas when posting to social media, especially for commercial purposes and social media advertising:

  • Copyright: Employees should not duplicate or reproduce the content of others without written permission.
  • Trademark: Employees should know all the company’s trademarks and how to use them correctly.
  • Endorsements: Employees should disclose material connections with the company when endorsing its products and services per Federal Trade Commission testimonial guidelines.

It’s important to train your employees on the social media policy and related procedures and also answer questions they may have, like “Why should I care? What does it mean to me?”

What they post on social media could impact their personal and professional lives—both positively and negatively. It could mean the difference between being promoted and landing their dream job or being disciplined or fired.

The important thing to remember—once you have trained your employees on social media and they understand what is expected of them as employees—is to step back and trust your employees will say and do “the right thing.”

Tip 3: Enforce your social media policy and hold employees accountable.

Toerek said that “Your policy is only as effective as you enforce it. Companies need to be consistent with enforcement, so rules don’t get ignored or diluted.”

“If policies are not applied fairly and consistently, your employees will get confused and/or won’t follow the rules,” she said.

So, while you trust your employees to respect the laws that protect the company’s intellectual property, you also must hold them accountable for their actions—whether online or in person.

Bonus tip: Employees and employers alike must respect all laws.

In some cases, employees’ rights to freedom of expression are protected—even on social media. Laws about unfair labor practices and workers’ rights must be taken into consideration when applying social media policies and disciplinary actions.

Employees are protected under the National Labor Relations Act to comment publicly about their employment terms and working conditions as well as “whistle-blow” illegal or improper work practices.

There are several other advertising, trade, and employment/labor laws that employers need to consider as it relates to their social media policies and what they can and can’t limit employees’ rights to freedom of expression. Toerek said it is important to stay current on legal developments related to social media.

“This is an ever-evolving area of the law, which makes it challenging to stay up-to-date, but one that is critical to companies,” Toerek said. “This is especially true now more than ever with remote and hybrid employees and personal and professional lines being blurred.”

If you have questions about intellectual property, marketing law, or need legal assistance, you can contact Sharon Toerek on LinkedIn or at legalandcreative.com. If you need help with employee communications or marketing needs, reach out to us at HelloIndy@westcomm.com or follow us on LinkedIn for more insights.

*A portion of this is reproduced from “How to Avoid Legal Trouble with Social Media” by Sharon Toerek, in which written permission was received

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