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.
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.