Social Media Policy Analysis: FDA Revises Social Media Policy

Social Media Policy Analysis

The New FDA Social Media Policy [PDF] is unlikely to achieve its stated purpose of encouraging “…the use of school media technologies to enhance communications.”

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Still, given that many social media policies that have violated the National Labor Relations Act so far, I’m surprised to see this new policy make what appear to be some pretty basic mistakes with respect to NLRA compliance, particularly since the FDA is among the last big US Federal Agencies to publish a social media policy, which means they’ve had a good deal of time to develop governance standards.

The portion of the NLRA which protects workers rights on social media is Section 7 and it prohibits employers from taking actions against employees who get together to talk collectively about the terms and conditions of their employment.

Social media is the new town square. The NLRA protects workers rights to organize online, whether employers like it or not. Employers can’t fire someone for trying to improve their working conditions by sharing things they may consider confidential on social networks, whether their workers are unionized or not.  

The National Labor Relations Act also protects employees from being disciplined for discussing wages, hours and working conditions with their coworkers online, resulting in a good deal of uncertainty about what types of restrictions employers can make over how their employees use social media.  So far, very few social media policies have stood up to NLRB scrutiny.

Although not required, the new FDA social media policy says employees “may” use a disclaimer to differentiate their comments from those sanctioned by the FDA, which is in keeping with the NLRB’s decision that requiring employees to include a disclaimer in their social media posts that their opinions are their own is “unreasonably burdensome” and unlawful. So saying employees may but aren’t required to use a disclaimer, is a wise choice.

The decision to restrict employers from requiring an “opinions are my own” disclaimer in their social media posts was triggered by an unfair labor practice charge from a Kroger employee who received a written warning for failing to comply. 

The NLRB found the condition to be “unreasonable burdensome” because of the “subtle risk of chilling effects” this requirement could have on employees rights to organize and bargain collectively. And it’s impossible to include a disclaimer in a Facebook Like anyway.

The FDA social media policy also restricts the use of the official FDA logo on social media without clearance, which is also problematic because in August 2013, the NLRA said restricting employees from using company logos, photos and video on social media was called a violation of Section 7, saying that employees have a right to use company logos when gathering online, much like they do to use them on picket signs, leaflets and other printed materials if their intent is concerted.

But in my opinion, the clause in the FDA Social Media Policy that is most likely to discourage responsible, effective social media use is this one, which prohibits employees from setting the record straight:

Correction of Errors

Ensuring that the work and views of agency employees are accurately represented by FDA on the agency’s social media channels is critical to the agency. Therefore, an agency employee can request that an agency social media communication be corrected, amended, or clarified if:

(1) the communication is based upon the research or published work of the employee or purports to express the employees views by name or title; and

(2) the communication is false, misleading, or confusing.

Employees seeking a correction should raise their concerns with OEA.OEA will work with the employee and agency component that administers the social media account to determine what modification or supplement to the earlier social media communication, if any, would be appropriate to correct the prior statement or eliminate the confusion.

In my opinion, this command and control approach nullifies the prospective benefit of democratizing communications at scale via social media with agency personnel.  

Social media communications have essentially replaced phone and email correspondence.

The new FDA Social Media Policy all but ensures employees probably won’t help spread the agency's messages with their social networks online.