New FTC Guidelines Require Employers To Strengthen Social Networking Policies
Client Alert | 1 min read | 01.08.10
The revised guidelines on endorsements and testimonials in advertising, codified at 16 C.F.R. § 255, threaten liability under the Federal Trade Commission Act for both employees and employers if an employee fails to clearly and conspicuously disclose the employer/employee relationship when touting a product or service of the employer, including on a blog, online messaging board, or other social networking platform like Facebook or MySpace. These guidelines target "deceptive" advertising by employees whose endorsements are affected by the "material connections" that exist with their employers but who fail to disclose that such relationships exist.
The FTC suggested in answers to FAQs about the guidelines that it is unlikely to pursue a company for the conduct of a "rogue" employee who has violated a company's adequate policy regarding employee social networking. The numerous employers that have yet to create such a policy, however, are more likely to be found liable for the deceptive actions of "rogue" employees.
Employers should review their social networking/blogging policies to ensure they adequately address employee endorsements. The policies should:
- Require employees to disclose their relationship with the employer clearly and conspicuously whenever they plug the company's products or services, whether it be on a social networking site, blog or any other forum.
- Require employees to include a statement that they are not a spokesperson for the company, but instead are expressing their own opinions, whenever they plug the company's products or services, whether it be on a social networking site, blog or any other forum.
Employers without an employee social networking/blogging policy should create a comprehensive policy as soon as possible. Employers are cautioned to carefully craft their policies so as not to run afoul of the National Labor Relations Act or Railway Labor Act provisions against curtailing concerted activity by employees or certain state laws (e.g., California Labor Code section 96(k)) which prohibit employers from retaliating against employees for their legal off-duty conduct.
For more information, please contact the attorneys listed below or your regular Crowell & Moring contact.
Contacts
Insights
Client Alert | 3 min read | 06.12.26
DOJ Guidance Backs Away From Disparate Impact Liability
On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”
Client Alert | 4 min read | 06.12.26
Auto Dealers: The FTC Is Back in the Driver’s Seat — Warning Letters Signal Renewed Federal Scrutiny
Client Alert | 13 min read | 06.12.26
Client Alert | 4 min read | 06.12.26
