4 Steps to Managing your Employees’ Social Media Presence
By Paul A. Lange, Esq. and Alison L. McKay, Esq.
In a previous article, we discussed the importance of monitoring your website and social media accounts and monitoring your competitors’ website and social media accounts. We noted in that article that “[s]ocial media sites are ripe with casual but potentially explosive comments by individuals discussing their glee over promotions, ‘fun’ at the expense of someone else (you or your company), and other useful tidbits which can support your claim of wrongdoing.” The purpose of this article is to offer the reader guidance on how to manage what your employees post through their social media presence and minimize the risk that a competitor identifies harmful information through an employee’s social media presence.
Aviation businesses often compete for a limited customer base. As a result, they tend to be hotspots for commercial disputes that may result in the filing of a Part 13 or Part 16 Complaint, or even a civil lawsuit in State or Federal Court. Therefore, you are probably already carefully monitoring the information that you share on your website or through your businesses’ social media accounts. Do you, however, monitor what your employees post as carefully? Most people have some social media presence whether they use LinkedIn, Facebook, Instagram, Twitter, or Pintrest. Therefore, you should assume that all of your employees have some form of social media presence and, as an employer, you should be monitoring your employee’s social media presence. An employee boasting of having landed a deal for a new client or recommending your business for a new service that you are offering may be the smoking gun that your competitor is looking for to support a claim against your business.
The following steps should be implemented to minimize the risk created by an employee’s social media activity:
(1) develop a social media policy;
(2) publish and circulate the social media policy to your employees;
(3) monitor employee compliance with the social media policy; and
(4) discipline employees who fail to comply.
Propose the Policy
Your social media policy should include, at a minimum, the following provisions:
- Define social media;
- Remind employees that whether they specifically list you as an employer or not, an employee’s position with the employer may be generally known and/or publically available;
- Advise employees that they cannot share confidential or private information about the Company’s business operations, products, services, employees and/or customers;
- Advise employees that they may never indicate or imply that they speak for the Company or use the Company’s logo without express written authorization from the Company;
- Advise employees that they should never use their employer issued e-mail account or password in conjunction with a personal social networking site unless specifically authorized;
- Recommend that employees take advantage of the privacy settings available and limit their audience; and
- Advise employees that they are personally and legally responsible for the content of their social media activity and the commentary they post and that they can be held liable for unlawful activities (examples include: defamatory, libelous, obscene, or discriminatory statements, or posting material that violates intellectual property laws, or improperly discloses confidential or proprietary information of the Company or any other party, or otherwise violates the employer’s code of conduct). Advise employees that such improper activities may also result in disciplinary action up to and including termination of employment.
Many large employers have developed their own social media policies which are available publically on their websites. Examples of employers with publically available social media policies are Wal-Mart[1]; State of North Carolina[2]; NYC Department of Education[3]; and Nordstrom[4]. When developing your own policy, it may be helpful to review other companies’ policies. It is recommended, however, that you consult with counsel after you have drafted your Company’s social media policy to confirm compliance with local laws.
Let it Be Known
Once you have a policy, you should publish it and circulate it to your employees. Generally, it is good practice to incorporate the social media policy into an existing employee manual and circulate an updated revision to all employees. When you circulate the updated revision, you should provide a receipt for each employee to acknowledge receipt of the updated revision and maintain a copy of the receipt in each employee’s personnel file. Establishing a social media policy and educating your employees on the policy and consequences for failing to adhere to the policy, will significantly reduce the risk that an employee generates and publishes social media content that is harmful to his/her employer.
Police the Place
The next step in managing how your employees’ social media presence impacts your Company is to routinely search the commonly used social media sites for references to your Company and any of your employees. Whether you are permitted to request an employee provide you access to their personnel social media accounts is determined by state law but is generally frowned upon. There is nothing, however, to prohibit you from monitoring your employees’ publically available social media activity.
Swift Decisive Discipline
If, during your routine monitoring, you find that an employee has violated your social media policy, you should immediately bring the violation to your employee’s attention and ask him or her to cure the violation by removing the offending post or comment. You should document your request to the employee in writing and place a copy in his or her personnel file and follow up to make sure the offending post or comment is removed. If the employee fails to remedy the offending conduct, or repeatedly engages in similar conduct, you must consider what, if any, discipline should be taken against the employee. Any discipline should be consistent with the discipline and/or termination policy set forth in your employee manual.
Further, before you discipline an employee for a social media communication, you should consider whether the social media communication contains a communication that brings the employee within the protection of a state or federal statute aimed at protecting whistleblowers[5]. If you are concerned that an employee’s social media communication brings them within the protections of a state or federal whistleblower statute, you should consult an attorney before disciplining that employee.
If the employee refuses to remove the offending comment, you should consult with an attorney to assess your risk if the offending comment is not removed. Examples of concerns that should be evaluated by an attorney include: (1) Does the offending comment contain an untrue statement that could expose the Company to civil claims by a third party?; or (2) Does the offending comment create a risk of a claim for sexual harassment by another employee? Following an assessment of the risks, your attorney should be able to offer you options to remedy the situation.
In sum, being mindful of the content that you publish about your Company is not enough to avoid the risk that information about your Company in the public domain could harm you in a Part 13 or Part 16 Complaint, or in civil litigation. You must also be aware of the information your employees publish on social media websites. You can, however, minimize the risk that harmful content generated by your employees reaches the public domain if you (1) establish a social media policy; (2) publish it in your employee handbook; (3) monitor employee compliance; and (4) promptly address non-compliance.
[1] http://corporate.walmart.com/social-media-guidelines (last checked on 7/26/2013).
[2] http://www.records.ncdcr.gov/guides/best_practices_socialmedia_usage_20091217.pdf (last checked on 7/26/2013).
[3] http://schools.nyc.gov/NR/rdonlyres/BCF47CED-604B-4FDD-B752-DC2D81504478/0/DOESocialMediaGuidelines20120430.pdf (last checked on 7/26/2013).
[4] http://shop.nordstrom.com/c/social-networking-guidelines (last checked on 7/26/2013).
[5] A “whistleblower” is defined as “[a]n employee who reports employer wrongdoing to a governmental or law-enforcement agency.” Black’s Law Dictionary, 8th Ed. at p. 1627.
