Industry Watch

Caveat: Post with care

Social media at work is a double-edged sword

By Brian Martucci
Tuesday, May 17, 2016

A cringe-worthy tweet. A hasty deletion. A forthright mea culpa.

And then … an empty desk.

It’s an all-too-familiar scenario, though thankfully not too common.

For employees, social media is just the latest in a long list of professional hazards. For employers, it’s yet another liability to fret over.

“The central question for businesses is, ‘How do we use social media to our advantage while mitigating our exposure to risk?’” says Gray Plant Mooty attorney Michael Cohen.

Cohen, who’s worked on information technology law and data privacy issues for more than 25 years, is the primary author of the free legal guide to social media and employment law: 2013’s A Legal Guide to the Use of Social Media in the Workplace, written in collaboration with the Minnesota Department of Economic Development. Though many of the legal considerations outlined in A Legal Guide predate the Internet, they’ve gained potency in a world where everyone is his or her own publisher.

“Social media makes it so much easier for employees to share and transmit information, increasing potential risks and liability for employers,” says Cohen.

Key issues

When hiring, Cohen advises employers to be particularly mindful of:

Discrimination Laws: Employers often scan job candidates’ social media profiles. Employers aren’t prohibited from ascertaining protected class information (e.g. race, gender, religion) during this process, but they are (of course) prohibited from acting on it. To forestall discrimination claims, Cohen’s Guide advises employers to sequester employees tasked with information-gathering from those tasked with approving or rejecting candidates.

Protected Activity Laws: According to the Guide, Section 7 of the National Labor Relations Act “protects non-management employees’ right to engage in concerted activity for mutual aid and protection … whether or not an employee is in a union.” Protected activity includes, among other things, posting a non-defamatory social media gripe about one’s employer from one’s personal phone or computer. Under normal circumstances, employers can’t terminate employees for such protected social media activity, nor (for the most part) impose rules or bylaws abridging protected activity.  

Geographical Regulatory Variability: Companies with global subsidiaries need to understand that their rights and obligations may vary from place to place. “In Europe, for instance, regulatory authorities take a completely different approach to information technology law and privacy matters,” says Cohen. When in doubt, consult an attorney.

Internal Management: Social media activity doesn’t have to be illegal to damage a company’s reputation. Employers should consider designating a single trusted employee to manage corporate social media accounts, lest rogue employees take the wheel. An example: during a round of layoffs, someone logs into the company Facebook account and posts, “We’re firing *a lot* of people today. Wonder who’s next!” Try explaining that to the board.

Tackling workplace social media use

Cohen’s Guide has plenty more where this came from. With so much to keep straight, you’d expect the typical workplace social media policy to be dense, dull and legalistic. But that’s not always the case.

Kimley-Horn, an engineering consulting firm with offices in St. Paul, has a “trust-based” social media policy, says Vice President and Communications Director Julie Beauvais. Kimley-Horn’s policy, barely a page long, emphasizes “culture and values” over strict guidelines and prohibitions.

“When your people understand why you do things a certain way, they tend to buy in,” says Beauvais. “We realize that our employees are grown-ups.”

Kimley-Horn takes at least one Cohen recommendation to heart: the 2,500-employee firm has a single point person tasked with finding and promoting company news. Other employees will soon be able to support this person’s efforts through a “newsdesk” function that “ensures our social media presence reflects the company as a whole, not just a vocal minority,” says Beauvais.

Minneapolis-based Calabrio, a B2B software company, also relies on trust. According to CEO Tom Goodmanson, Calabrio’s young workforce follows three simple guidelines: 1)Always post yourself; 2) always be authentic; and 3) never disclose confidential information. Since part of Calabrio’s business involves social media analytics, employees are encouraged to experiment with different social platforms — “however they’re comfortable posting and chatting,” says Goodmanson.

Calabrio didn’t even have a social media policy until relatively recently. Early on, the company handled miscues on a case-by-case basis.

“Basically, we’d say to an employee, ‘Hey, did it really make sense to post that?’” recalls Goodmanson. “Eventually, we incorporated the spirit of those conversations into our employee handbook.” To date, Calabrio hasn’t had to take down an ill-advised tweet, snap, pin or post.

Good fortune? Perhaps. But Goodmanson doesn’t discount the importance of company culture, either. “It’s better to let things happen organically, within reasonable guardrails, than to stifle your employees’ creativity,” he says. “If you have good people, they’ll represent your brand well.”

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