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Is Your Social Media Policy Legal?

November 10, 2010

John McTigue has written a great article  about a case first published in the New York Times “in which an employee was terminated for criticizing her supervisor on her Facebook page”. As he comments, most of us would think here’s yet another example of a foolish employee making silly comments about their employee in a public forum.

But is it? Or is Facebook “the equivalent of getting together around the water cooler” to “talk about working conditions”? Which, in the USA, may be perfectly legal under the National Labor Relations Act.

This case perfectly highlights the questions as to how much, and what, an employer can (as opposed to should) control in terms of their employees activities on social media.

Some of the issues that need to be considered include:

  • What is “reasonable” in terms of what you can expect of your employees involvement in social media?
  • Where is the boundary between public and private use of social media – ie can an employee talk about their employer on their private social media sites and can an employer restrict this? This is a really tricky one as the boundaries between public and private are increasingly blurred.
  • What is “reasonable” in terms of private social media use at work – employers often ask us to write restrictive policies with regard to social media use during work hours.
  • Content – what can employers restrict in terms of employees content on social media? Obviously anything illegal is easy but what about type of language or the definition of “confidential information”?
  • Conflict of interest – how do you deal with employees writing their own blogs or setting up their own networking forums? Can an employer be restrictive about this?

As well as the arguments about “what is reasonable” in these instances, employers also need to consider “what is legal”?

To quote some great advice from John McTigue, it is imperative that employers / companies seek legal counsel “before you develop, circulate and enforce your social media policy”.

  1. Last week, a member of my team was disciplined by our employer for posting a status update on Facebook that was mildly (in my opinion) critical of our employer. The staff member was naive in thinking that her posts on FB were private and received a legal letter telling her to remove the post and was disciplined by the manager.

    Putting what is and isn’t legal aside, and coming from the perspective of an employee, I feel how my employer handled this situation was poor and very disappointing.

    When customers post negative reviews, organisations take them seriously and take steps to address the problem and come to a positive outcome for the customer. Often the end result is the customer becomes a strong advocate for the organisation/brand. There is an opportunity for employers to do the same with their employees.

    If employers are monitoring staff on social networks, they are getting direct feedback on how their employees think about them. In this day and age, that’s great feedback and identifies opportunities for organisations to improve their employee relations – after all, employees can be some of your best advocates and sometimes, instead of being heavy handed, a better outcome could be to engage with the employee to fix the underlying problem which drove them to post the offending comment in the first place.

    Social networks are here to stay. Some employers seem to be spending alot of resources trying to control social networks and what their employees are doing on them. I believe these resources would be better spent learning to engage with employees on these networks, educating them on what is and isn’t acceptable (a social media policy is one part of this) and then trusting them to do the right thing.

    Censorship is so last decade. Hiding behind “legal” arguments might stop employees on social networks but it won’t stop them talking to their friends and family and it won’t stop them once they leave the organisation. Employers might get a short term win going down the so called legal path but long term, if they haven’t addressed the underlying problem, it hasn’t been resolved.

    • This is a fantastic comment – thank you – and raises many of the difficult issues both employers and employees are facing with social media. As you mention, disciplinary action is not necessarily the best action for employers and in fact it could be beneficial for them to received and deal with negative feedback from employees in terms of creating a better work place. This is largely a matter of confidence on the part of the employer in being transparent.

  2. This is indeed a great point made by Diane. I would however, stress, that as an employer, I dont think it is unreasonable to expect that grievances be dealt with internally wherever possible. Facebook is not the appropriate domain for have a whinge about the boss for instance (not saying this was the case in this circumstance, just using it as an example). It sounds as though the comment was farily mild, and many employers dont actually ‘get’ social media and the benefits that it can bring, hence the harsh reaction.

    Also importnant, and what we find, is that if there is some sort of policy or guidelines in place regarding the use of social media, and training on it, then any sort of disciplinary action taken shouldnt come as a shock, and in fact, is not really needed most of the time.

  3. Andrew permalink

    What about Social Media policies that require the employee to refrain from photos consuming alcohol or even wearing clothing items with profane words? Would this be a freedom of speech issue?

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