Of course, these conversations have been going on for a long time in everyone’s business. But now that we have social media, they are not just confined to a small group. Think of social media as the TV show “Cheers” and everyone is Cliff Clavin. As a contractor, do you have any leverage over your employees' social media participation? What are they saying about you, your company, and possibly your customers? What we have here is protection of your brand versus infringing on First Amendment rights.
Many national companies have addressed this situation. Best Buy, for example, has a social media policy. In addition to prohibiting employees from tweeting any sensitive information like sales numbers or company sales promotions, when talking about Best Buy, employees must be sure to state the opinions are theirs and not those of Best Buy. Consequences for not following the rules can be as severe as termination.
Coca-Cola’s social media policy points out that there is a big difference between speaking “on behalf of the company” and speaking “about” the company. Their leadership makes a point of only allowing certified online spokespeople to respond to negative conversations about the brand. They do not want their regular employees engaging in such conversations.
These two examples are both solid ways for a company to go about regulating social media. They allow their employees to have the freedom of expression, yet they also protect the brand.
Some companies want more control and that is fine. The problem is when some companies (not mine … I love my company/bosses!) make the mistake of constructing a social media policy that reads like Antonin Scalia wrote it. When it begins to sound like a law document that lists 1,600 things an employee should not be doing, you will have half your employees confused and the other half mad. If you are a believer in good company morale, this is probably not the way to go.
Social media is a powerful tool and your employees can be a great resource to get the word out about your company. When your social policy makes it sound like your employees can be hauled in before Judge Judy for posting a tame tweet, you eliminate that very powerful resource. Your employees can be so paralyzed with fear that they will not even want to tell people where they work for fear that something they say will come back and bite them.
If you have an advisory board or a group of top managers, this is a topic I would bounce off them at the next meeting. I would advise having more of a common sense approach than a legal approach. Common sense includes: no complaining about customers on Facebook, no attacking other employees via social media, and making sure it is evident that the individual is representing his or her beliefs and not those of the company.
And while you are working on crafting the social media policy, think about if you want to ban its use on employee computers/phones unless they are authorized to do social media for the company.
Lawyers Should Give a Look
Now, please do not take this as official legal advice. My only law knowledge has been gleaned from being in the room while my parents watched “L.A. Law.” However, I would advise that you have your lawyers check out your policy so you are not doing something illegal. Obviously, you can’t prevent your employees from using social media in their personal lives. I am not sure where the line between free speech and employer rights is — and I am guessing a lot of lawyers might disagree — but it is important to get your lawyer's position. Keep in mind that those folks usually go overboard to make sure you are completely protected in absolutely every case that could possibly come up.
And that is when we run into Scalia’s social media policy.
Publication date: 04/30/2012