Hundreds of millions of people now have social media accounts, and your employees are certainly among them. When they get to talking — with friends, relatives, coworkers, or the world at large — their work (and your business) will be part of the conversation.
The thought of what they might be saying about you and your company may give you the willies. It may also tempt you to keep their social media activities on a tight leash. That’s probably not a realistic goal — it’s on the order of a “no personal phone calls” rule, and we all know how well that works — and in many cases it could be counterproductive.
Instead, it makes more sense to come up with a social media policy that both you and your employees can live with. And at a time when more companies are getting into trouble over their attempts to restrain employee social media activities, it’s more important than ever to craft a policy that’s both practical and legally defensible.
Weighing the Risks and Benefits of Social Media
According to business experts, how you start this process will depend on the type of business you’re in.
Some organizations, such as health care providers, face regulatory compliance and privacy issues that demand strict on-the-job social media restrictions. Jan Watrous-McCabe, senior business analyst at Allina Health System in Minneapolis, said her hospital group’s social media policy is simple: “We don’t allow access to Facebook.” A startup that’s still in “stealth mode” would also have sound reasons to play its cards close to the vest — and require employees to do the same.
On the other hand, many businesses can benefit from the sort of employee engagement with the public that social media facilitates. Nick Howe, vice president of Hitachi Data Systems’ HDS Academy, said, “Social media can provide new avenues to attract, engage, and retain customers. Facebook Fan pages, Twitter promotions, Foursquare check-ins, Groupons — there’s a vast range of opportunities for employees to interact with customers.”
That’s where Gary Gansle, partner in the labor and employment practice at law firm Dorsey & Whitney, advises businesses to start, too. Gansle said he asks his clients, “On a scale of 1 to 10, where 1 means no social media, and 10 means widespread social media use could help your business, where do you lie? Is the risk of misuse of social media smaller than the potential benefit?”
Crafting Appropriate Social Media Policies
Once employers know where they stand, or would like to stand, in the social media landscape, they can develop appropriate policies. At this stage, it’s a good idea to enlist employee participation, especially if the benefits of a liberal social media policy outweigh the costs. Present the issue as one of how social media marketing could help benefit the business, and cast any rules and restrictions as part of that effort. Giving employees a sense of ownership of the policy will make them less likely to violate it, and they may have good ideas for making the policy even more effective.
As far as the specifics of a policy go, Gansle recommended guidelines that sound unequivocal but still allow flexibility. For example, he said, stating that “abuse of social media may be grounds for termination” puts employees on notice, but it still gives employers the flexibility to determine just what constitutes “abuse” and whether termination is a reasonable penalty.
In general, experts agree that a social media policy has to balance an employee’s right to privacy and free expression with established standards of workplace behavior. If an employer, for example, discovers a worker posting Facebook comments about a coworker that would constitute sexual harassment if the comments were made in person or by email, then the employer may actually be compelled to take action. “The company has an obligation to protect its workers,” said Gansle, and this obligation may trump an employee’s First Amendment rights.
Similar issues can arise with prehire social media activities. Employers are increasingly looking at applicants’ social media profiles as part of the screening process, but these reviews may reveal information that would be off limits in an interview, such as age or marital status. In such cases, it’s better not to see that information at all than to risk appearing to use it in a hiring decision. As a result, Gansle recommends using a low-level screener to review an applicant’s social media content and to push only filtered information to the actual hiring decision maker.
Legal Standards Are Still in Flux
In some cases, it’s already quite clear what an employer can or cannot do with employee social media content. Unfortunately, in many other cases, it’s still extremely difficult to draw “bright lines” around legal vs. illegal policies. The social media landscape is still in flux; as with sexual harassment, it will take an accumulation of case law before more hard-and-fast rules emerge.
Clearly, however, this process is already underway. The National Labor Relations Board put one key stake in the ground last fall when it filed a complaint against American Medical Response for dismissing an employee who called her employer rude names on Facebook. The Facebook post attracted comments from the woman’s coworkers, and the NLRB argued that her action was a protected “concerted activity” — that is, it involved a group of employees discussing a shared employment situation. The complaint was later settled, with AMR making some concessions.
On the other hand, the NLRB sent a memorandum to Sears Holdings in December 2009 that established some lines employees cannot cross with social media content. In this case, the NLRB advised the company that it would be within its rights to prohibit “confidential or proprietary information of clients, partners, vendors, and suppliers,” “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects,” and “disparagement of any race, religion, gender, sexual orientation, disability, or national origin,” among other sensitive topics.
Real-World Examples of Social Media Policies
Experts predict that similar, and sometimes contradictory, decisions will slowly fill in the social media legal landscape. In the meantime, as in so many areas, SMBs can benefit from watching how larger companies handle these issues. Many enterprises post their social media policies, and they provide real-world examples of how to apply these policies. These companies also tend to display the combination of “firm but flexible” policies that legal experts like Gansle recommend.
For example, Cisco warns that violation of its policy “may result in disciplinary action up to and including termination. Common sense is the best guide if you decide to post information in any way relating to Cisco.” The policy requires that when employees say anything related to the company, they have to identify themselves as an employee and include a disclaimer that the post doesn’t necessarily represent Cisco’s position.
Coca-Cola urges employees to participate in social media “properly, exercising sound judgment and common sense.” It’s a good example of a policy that gives employees responsibility for their behavior, but that also gives managers the flexibility to identify and sanction employees who use unsound judgment.
Like Cisco’s policy, IBM’s Social Computing Guidelines require that employees identify their association with IBM and include a disclaimer. The policy also warns against ethnic slurs, insults, obscenity, or “any conduct that would not be acceptable in IBM’s workplace.” However, the guidelines also provide positive guidance, such as advice on how employees can best present themselves in a social media setting. This approach recalls the advice to engage employees in developing the policy, making it not just about what they can’t do, but also about what they can do.
Finally, Coca-Cola’s guidelines add an important, common-sense element that small businesses would be wise to adopt. Its social media policy states, “The Company respects the free speech rights of all of its associates, but you must remember that customers, colleagues and supervisors often have access to the online content you post.”
In other words, it’s good to remind employees that the Internet is forever and everywhere. Even if what an employee posts has no immediate effects, there’s no way to know who might read it later, including potential future employers who will judge them by their online behavior. Today’s careless or disparaging comment may not get an employee fired today, but it could certainly cost them a job opportunity tomorrow.