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January 24th, 2013

Social Media Policies Come Under Legal Review

(Note: Hat tip to Christopher Barger for flagging this story and for making sure the below made some sort of sense.)

An incredibly important decision has been made with, as reported the other day, federal regulators and other officials finding that some common aspects of corporate social media policies infringe on the rights of employees.

Specifically various regulators and boards have found that policies that seek to limit what employees can say about the company they work for on social media platforms are illegal. These platforms – Twitter, Facebook and the like – are instead increasingly seen as being like a neighborhood watering hole, where everyone is free to kvetch and converse as much as they like regardless of the topic of the conversation. That includes complaining about your boss, your co-workers, your employer, its customers and everything else, all without the fear that a misstep will get said employee fired.

On the one hand this makes sense; You’re not going to get fired for complaining to your friend about your boss when the two of you are together in person. So to some extent it follows that the same sentiment expressed to your friends on Twitter should similarly be protected.

But that logic only holds up so far and eventually falls victim to a fundamental misunderstanding of how social media communication works. If I share a work-related gripe with a friend that stays (hopefully) between myself and him. If I share the same gripe on Twitter I’m immediately broadcasting it to some subset of my 2,300+ Followers.

That’s a seismic shift in the proportion of the spread of that message. And it doesn’t even begin to take into account the fact that everything said on social platforms is assumed to be “on the record” and therefore fair game for any industry reporters who follow me. And then there’s the issue of how such gripes are seen and perceived by any current clients who follow me and who, by seeing my gripe, may have a changed sense of how the company operates that could eventually have repercussions on whether they continue to work with someone. It could also impact recruitment, new business ventures and maybe even stock price if the mix of elements is just right.

Social media policies, including bans on or warnings against disrespectful or disparaging comments about an employer or its staff, clients, vendors or other partners, are there to protect the interests of everyone involved. So while it may eventually become settled policy that an employer cannot fire someone for what’s said on social media there can still be discouragements about doing so that lay out the potential downsides.

Also – What happens the first time that a manager sues an employee and a company for disparaging (and perhaps untrue) remarks made about them in a social network by an employee? The NLRB has ruled their speech protected… but does a fellow employee who happens to be above them on the chain of command have a right to not be disparaged?

It goes back to the idea that such corporate policies need to be just one part of a broader dialogue between employers and employees. HR teams should be monitoring what employees are saying on social media to the extent that’s possible and, if a complaint is registered, then it should be addressed in the same manner as if it had come in through any other outlet. Most important, the question “Why do you feel like this?” needs to be addressed.

The next most important conversation needs to be educating employees – either singly or en masse – about the potential pitfalls of bad-mouthing some aspect of their work environment in a public forum. It may be that, independent of whether or not they think they may be fired for what they say, someone just hasn’t thought through all the other ways it can come back to burn either them individually or the company as a whole. So some friendly reminders about all the ways their legally protected complaints are still a really bad idea are going to be helpful here.

As with many things, the legal and regulatory issues surrounding this will likely continue to be discussed and worked out over the next couple of years. But outside of that it’s important that companies review their policies for what parts may be in dispute and what parts can be adapted into educational components instead of outright penalties.

About the Author
Chris Thilk works on the Client Services team, part of Voce Connect, developing and executing social media strategy. You can follow him at @christhilk on Twitter.

Filed in Social Media

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