Hat tip to Rosetta Thurman. To paraphrase Thoreau (or The United States Magazine and Democratic Review), apparently the social media policy which is best governs least.
According to a piece on the HR Examiner by Heather Bussing, applying a light hand when creating a social media policy will actually minimize your exposure to legal liability for something your employee writes.
“If you have a comprehensive social media policy that dictates what can and cannot be discussed, you will have to pay someone to monitor what is being said, demand that inappropriate posts come down and discipline when the edicts are violated. How much time, money and energy is this really worth?
Under agency law, if you are directing the conduct of employees in social media, the company will be liable for everything that is said. To the extent something said is defamatory, violates a nondisclosure agreement or just pisses someone off, a comprehensive social media policy is the best way to get the company named in the lawsuit.
If you are not controlling it, then the company generally will not be liable for things said and done in employees’ personal accounts. This is because the employees are not acting in the course of their employment and the employer is not controlling or implicitly approving the actions of its employees. And if there is no deep pocket to sue, the chance of a lawsuit getting filed at all is greatly diminished.”
Having employees make a disclaimer that what they say doesn’t reflect the opinion of the employer can cause someone to investigate whether the employer is closely monitoring what is being said and taking disciplinary action. If this is so then the case can be made that the employer was guiding the content or was aware of the content and made a decision whether to act upon it. The speed and degree to which the employer acted can be used as a basis of arguing approval of the content.
You can also run afoul free speech and right to organize if your policy is too restrictive as well as violate whistle-blower and non-retaliatory protections.
“The National Labor Relations Act protects employees from retaliation by an employer for discussing wages, hours or working conditions. These NLRA protections apply whether or not your company has a union, because they relate to “organizing” or pre-union actions.
The bottom line is that a social media policy cannot prohibit an employee from saying bad things about what it is like to work at your company. Protected expressions include being critical of the bosses, the customers or the stupid signs in the kitchen.”
If you are closely monitoring someone’s personal social media accounts you might be violating rights to privacy and open yourself to hacking charges if you gain access to and use passwords. Monitoring personal social media could lead to a wrongful termination action if it was discovered that you were aware of personal details that might place a burden on the company and moved to fire or harass them into leaving.
And of course, having a strict social media policy can be bad for your public image if it appears you are dictating what is being said rather than allowing for spontaneous interactions.
The article doesn’t really address how constrained you are in acting upon things employees may post on social media sites. People may have protected free speech but there is a difference between getting drunk and telling everyone in the bar that your boss has an unmentionable relationship with farm animals and getting drunk, pulling out your phone and posting the same thing to 5000 followers. That still may be protected, but at some point the scale of people receiving the message is going to be great enough that a business is justified in whatever action they may take.
Bussing does discuss in what situations it is acceptable to monitor social media accounts and to what degree it should be done. As in most things, the best social media policy is preparation and education. Employees should be taught what sort of activity is professional, how sharing certain tidbits of information can violate confidentiality and what opinions may be considered defamatory.