I recently participated in a webinar on Social Media Best Practices offered by Church Mutual Insurance Company. There were some valuable tips that everyone should consider for their personal social media accounts as well as their business or non-profit. Some of the largest liabilities to your reputation can be your employees, interns and even volunteers. This is why you need a social media policy.
In today’s world the Internet (including Facebook, Blogs, Twitter accounts and email), can be accessed anywhere from computers and smart phones. It’s estimated that there are 1.06 billion Facebook users worldwide and 500 million Twitter users. Social networking is the communication of the future, and with it, comments, speculation and opinions can quickly become viral—and viewed as fact. Take for instance the recent “misreporting” of news events such as the Colorado theater shooting, the Boston Marathon bombing and Hurricane Sandy. Misinformation can go viral in a matter of minutes after being posted just one time, and once it’s out there, it’s difficult, expensive and sometimes impossible to erase. One negative comment from an employee, or one disgruntled intern can quickly damage your reputation.
Employees’ Rights Online
Employers should always run background checks on their employees INCLUDING (and importantly) a search of their social media. A quick search of a potential employee’s name, LinkedIn profile and online presence can not only verify the honesty of an employee and their ability to understand confidentiality, but it can tell an employer if the employee is engaging in harassment or abuse of another employee. Legally, an employer canNOT use the information found on social media to discriminate against applicants or employees on the basis of race, religion, sexual orientation or other protected class, but an employer CAN use the information to gain insight into their behavior and background including verification of past employment claims.
A social media search can also give insight into current employee behavior. Good employees should understand this, and should also understand the importance of good online “hygiene” and privacy practices. Calling in sick, and then posting pictures to Instagram of your drunken escapade at the Brewers game could get you fired. Employers should create a social media policy that includes an employee agreement that they will not post to personal Social Media during work. Included in that policy should also be the scope of what employees can post about the company. This includes defamation, libel, slander, unauthorized disclosure of proprietary/confidential information, copyright infringement and harassing or bullying of coworkers.
Because of the changing nature of social media, the laws are rapidly changing with each new case, and will often be on the side of the employee, especially if they are not aware of your company policies. A solid social media policy, reviewed by your lawyer and included in the company handbook, may be the best way to protect yourself, particularly if you are a small business. You may think that it’s an expense your business doesn’t need, or it may be overly cautious and unnecessary, but consider this: “Whether an employer can be vicariously liable for the tort of its employees under a theory of Respondent Superior depends on whether the employee or agent was acting within the scope of employment at the time of the act.” The interpretation is broad. An employer may still be liable for the conduct of an employee even though the employee is not engaged in the ultimate object of his employment. (Note: See Alma W. v. Oakland Unified School Dist, 123 Cal. App 3d 133, 139 (1981).)
Liability in Simple Terms
Whether you argue that it’s morally “right” for an employer to expect their employees to behave a certain way outside of work or not, the question needs to be—does it matter to me legally? We hear stories of school districts putting teachers on probation for language outside of their jobs, politicians who have had their careers RUINED for behavior outside of the 9-5, and examples of employees behaving in ways that employers may not be okay with. Look at the recent Snowden/Wikileaks case. While this may seem like the most extreme example of a breach, it’s not so far off.
What if your employee is “Facebook friends” with several other employees? What if they are “friends” with a couple clients too? What if that employee has a case of the Mondays and decides to post about what a jerk you (the boss!) are? Or what a jerk one of your clients is? What if your client finds out, and comes after you? Or what if an intern is working on your company blog and they say something about your super-fantastic product and your “money-back guarantee” and someone calls you on it (and you don’t have a money-back guarantee)? Uh oh. (Note: See our previous post Do Yourself a Favor: Hire a Writer rather than overworking your poor intern.)
Is an employee’s communication private? According to Church Mutual, courts consider four factors in determining the employee’s expectation of privacy when it comes to data and email, and they all fall into the due diligence of the employer. Considerations include: Whether the employer has a policy in place banning personal use; whether the employer monitors the use of employee files, data and email; and, whether third parties have the right of access to the employee’s computer or email. The last consideration is: whether the employer notified the employee, and if the employee was aware of the monitoring policies.
To quote from the webinar: “Private employees can be restricted because the state action doctrine shields private persons, including corporations from having to comply with the constitution. Instead private employment relationships in most states and governed by the ‘at-will doctrine’, or the presumption that, barring a contractual agreement, an employment relationship can end at any time for any reason. Consequently, private employers can restrict the free speech of their employees and terminate employees for engaging in speech that is protected by the First Amendment. That right however is not without limits.”
When determining if there has been a violation of privacy, the question will arise if the employee has a reasonable expectation or privacy in the communication. Employees have no reasonable expectation of privacy in email boxes maintained by the employer or messages sent on an employer’s system! This extends to social media as well. If an employee is using their company’s computer, Internet, iPhone, or equipment—no privacy should be expected. So, if you’re an employee you should be aware of this, and if you’re an employer, you should make your employees aware of this. It is key to protecting yourself and your business. Including a social media and Internet usage and communication policy in your employee handbook is vital.
Next Up: What to put in your social media policy. Stay Tuned!