Recently, a former Facebook executive proclaimed that social media is “ripping apart the social fabric of how society works.” While this statement may be extreme on its face, the advent and prolific use of social media by employees seemingly can wreak havoc on a company’s business and its employees (especially Human Resources managers and in-house counsel). Just ask the NFL Network.
Earlier this month, the NFL Network became embroiled in a sexual harassment lawsuit by a female former employee that has resulted in the suspension of three current employees (all former NFL players) pending investigation and that also contains serious harassment allegations involving a former NFL Network executive producer. If that fumble was not headache enough for the network, the next day, the world learned that another NFL Network executive had deleted his Twitter account that included multiple exchanges with alleged porn stars and escorts over the course of several years. That executive resigned the very next week as a result. Allegedly, the network was well aware of the his sexually-tinged tweets prior to the account deletion and there were plenty of Twitter users who had used screen-grabs to preserve these tweets for all eternity before the account deletion. The executive’s tweets aren’t per se illegal, but they are embarrassing for the NFL Network, which not only exists in a male-dominated industry, but had just been sacked the day before with a high-profile sexual harassment lawsuit. With NFL viewership reportedly on the decline, the NFL Network can’t be happy that it is having a worse month than even the winless Cleveland Browns.
The rise of social media platforms like Facebook, Twitter and Instagram has been meteoric, and along with its popularity and mass appeal comes serious implications for employers. Businesses must often thread the needle between its employees’ right to express themselves on their personal social media accounts and the employer’s ability to protect its employees, as well as its reputation and goodwill.
While an employer will never be able to make itself immune to every potential ramification from employee social media postings, it can take proactive steps to limit exposure and put its employees on notice that their social media accounts may be monitored. These protective actions begin and end with a well-written, effective and disseminated social media policy.
1. General Expectations. An effective social media policy conveys to employees a company’s expectations when it comes to an employee representing the company on social media posts, as well as those expectations that flow from an employee using his or her own social media account to communicate and express their views and opinions to fellow social media members. In that regard, a social media policy should be consistent with other company policies, such as conflicts of interest, ethics, confidentiality of company information and anti-discrimination/anti-harassment. Generally, the policy should provide that content should not be obscene, racist, threatening, intimidating, bullying, or harassing.
2. Ramifications. It should inform an employee that a violation of those policies via social media can result in disciplinary action up to and including termination of employee.
3. Know the Limits. Employers should be mindful though that a social media policy should not overreach and attempt to ban any discussion by employees of their terms and conditions of employment. The National Labor Relations Board takes the stance that such polices may be illegal because they unlawfully interfere with an employee’s right under Section 7 of the National Labor Relations Act to engage in “protected concerted activities” for the purpose of their mutual aid and protection.
4. Not on the Clock. Employees should also be cautioned not to post to their personal social media accounts during work hours.
5. Not the Opinion of the Company. Importantly, a company should remind employees that, when they do post opinions and comments on social media implicating, or referring to, the company, they should indicate that they are expressing their personal views and not the views of the company.
6. Limitations on Use. Employees should not reference or share the company’s confidential information on social media and should not give advice to clients through social media.
7. Think Before You Post. And, finally, a strong social media policy also cautions an employee to be respectful, fair and accurate in his or her postings. An employer should remind employees that the best and safest way to avoid a potential conflict at work when engaging in social media is to post appropriate content and to think before sending that post irretrievably out onto the world wide web (and, possibly, if your employee is an NFL Network executive remind them that it might be best to avoid tweeting porn stars and escorts).
Deke W. Bond and Randy J. Bruchmiller co-authored this article and both are experienced labor and employment attorneys at Greathouse Holloway McFadden PLLC (ghmclaw.com)
