The use of social media has become more addictive than smoking and more appealing than sleep. An infographic published last year cites the effects social media has had on the 18-85 age category. Among those statistics: 1 in 3 people under the age of 30 value social media freedom in their jobs more than salary. 56% of people said they “wouldn’t take a job that didn’t allow access to social media”. For those organizations out there (like mine) that block social media access to some or all employees, those are hefty numbers to think about.
Once you’ve decided that social media is here to stay and employees should be allowed to utilize those types of sites, how do you manage this use and reduce overall liability?
Referred to as “Digital Smoke Breaks”, employees break time use of social media is commonplace for many employers. Attorney Oscar Michelen warns that even if you have implemented site-blocking software to prohibit employees from accessing social media sites, through the use of smart phones, these measures are much less effective. Combined with the fact that as an employer, you may be liable for things your employees say online, precautions should be considered.
That’s right, a proliferation of cases has already occurred over comments, posts and tweets made by employees that have exposed their employers to lawsuits, negative publicity, added expense and additional time-drain. Most of these cases have come in the form of defamation and libel claims but we have also seen cases brought for hostile workplace, sexual harassment, and cyberbullying related to what an employee posted about another employee or about a situation that arose at work.
How can employers be held responsible for what their employees post on social media sites?
- The posts are somehow connected to or related to the employees’ job at work so that a court can find that the posts were made within the scope of an employees’ job. Employers are liable for wrongful or negligent acts committed by their employees under the legal doctrine called respondeat superior…For example, if an employee endorses a product without adequate disclosures regarding conflict of interest or product warnings, the Company itself may be liable.
- The company does not do enough to police employees’ posts and is either aware of or should be aware of harmful posts by employees. Employers and their managers must be vigilant in dealing with complaints of malicious or maligning posts by employees online and deal with them directly or face claims that they hid their heads in the sand and allowed the conduct to continue to the point where it becomes actionable. If an employer knows or has reason to know that an employee is engaging in harmful activity, it may be deemed vicariously liable (under respondeat superior again) if it did not take appropriate action in the face of that knowledge.
What can employers do to protect themselves?
What a company can and should do about this issue will depend on factors such as a company’s size; its number of employees; its social media use; what the company does in the marketplace and other factors. So companies should seek counsel specific to them from their lawyers and IT personnel. But there are some steps that every employer can take to protect themselves better against this exposure:
- Get appropriate insurance. Your general liability coverage normally excludes damage caused by social media, bulletin boards, chat rooms, and posts. But specific coverage for this type of claim is available and relatively cheap. Professional, Communications, Data Privacy & Media Liability policies, in many forms, are available as endorsements to your current policy or as separate, stand alone products. Such coverage will compliment your current company-wide risk management program.
- Draft and put into place a social media policy for your company and its employees. A social media policy should now be standard for every company and every employee manual. Let your workers and managers know what is expected and permitted in terms of social media use both during the workday and before and after the workday…the FTC specifically states that employers who institute an appropriate policy governing social media participation by employees may reduce their liability exposure:
“If the employer has instituted policies and practices concerning ‘‘social media participation’’ by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision”.
[See the next post on How to Create A Social Media Policy]
3. Properly document and enforce whatever policy you institute. In all areas of the workplace, employers must stand behind what they say and what they promise employees. There is no point in paying a law firm to craft a policy that is going to be ignored or merely paid lip service to. It won’t protect you. Therefore, when enacting a social media policy you must put your money where your mouth is; meaning, employers must make sure that they take complaints of violations of the policy seriously and treat the employees reporting the offending conduct fairly and in accordance with the established guidelines. Properly documenting the complaint and how it was addressed is the first step. Handling the complaints in a consistent manner is the second step.
Education and Training
Outside of setting policies and arming companies with liability protection, employers can do something simple to help be proactive in their employees use of social media. Educated them. Provide a training session on what may seem like common sense, but may help set the expectations and give those more unfamiliar with social media something to think about.
Jeanne Meister, write for Forbes.com discusses how the “5 Rs of Social Media” can serve as a jumping off point for employer to develop guidelines and communicate with employees about how they should handle themselves online:
1. Reason. Simply put: use reasonable etiquette, the same as you would offline.
2. Represent yourself. Anonymous profiles lend themselves to more negative content.
3. Responsibility. Make sure that what you’re saying is factually correct, and also that it doesn’t violate any legal guidelines that prohibit revealing information that is material to a company’s stock price.
4. Respect. What you say online is a permanent record, so don’t say anything online you wouldn’t feel comfortable saying to the whole office – with a camera rolling.
5. Restraint. Before you hit that send button, pause and reread. If you wouldn’t want that particular thought or contribution forever associated with your name, don’t post it.
The workplace as we know it has evolved to include social media in everyday business. Whether a large or small presence in your place of work, employee use of social media should be addressed and handled appropriately in order to safeguard organizations against claims and lawsuits.
For more recruiting and engagement strategies, continue on in the Social Media Series for articles about: LinkedIn. Facebook. Twitter. Google+. YouTube. Pinterest. Instagram. Yammer. Quora, Dribbble, and GitHub. Also look at How to Create A Social Media Policy and Social Media Branding and Marketing Strategies.