Employers need clear social media policies

When insurgents stormed the U.S. Capitol building Jan. 6, many posted about the experience on their social media channels with some even livestreaming the event.

The fallout from their actions, however, was swift. Not only were some arrested on federal charges, many lost their jobs through people alerting employers about their social media activity during the event.

An event like the Jan. 6 riot brings up questions regarding employee behavior on social media in their downtime away from the office.

Natasha M. Nazareth, an attorney in Potomac, Maryland, advised clients to set good expectations for employees upfront.

“You don’t want your employees on social media doing things that are not consistent with your code of ethics or your company values,” she said.

If employee are using social media, Nazareth said, they should do so responsibly, be respectful and not represent or appear to represent the company because anything they do could reflect poorly on themselves, co-workers, the company or other vendors and affect relationships. These consequences could result in disciplinary action against an employee.

“If you have an employee that posts things online that are irresponsible, offensive or illegal and the employer finds out about it, you have to deal with it from a business perspective because that is what your customers are also seeing,” she said.

Baltimore lawyer Melissa Calhoon Jones said employers can compose carefully written social media policies that find the balance between understanding that employees are going to engage in personal social media conduct but establishing boundaries to not violate company policy.

Nazareth encourages clients not to monitor actively employees’ social media.

“Then you have to deal with what you find and most of what you find, most of the time, is not something that is coming into the workplace,” she said.

She said companies that do actively monitor run the risk of finding out private information and/or discovering information the employee has not disclosed, such as a disability or being part of a protected class.

In Jones’ experience, when an employee is terminated for unacceptable social media behavior, it was usually co-workers who brought the posts to the company’s attention.

“It is not a question so much of the employer monitoring as the employers’ right to be able to act on publicly available information,” she said.

Though social media may be used in their off time, employees need to understand their employer could act on posts.

“Employees should be aware that First Amendment rights to free speech don’t apply in the private sector,” Jones said. “… As long as the employer’s basis for termination is lawful then nothing is prohibiting the employer from doing that.”

With such a tight job market, many are unemployed and overqualified for positions, so you don’t want your social media to sabotage your chances.

“You need to be squeaky clean,” Nazareth said. “… In this day and age, anything that is on the internet, once you put it out there, it is there to stay and it can be used. It can be forwarded. It can be taken out of context.”

She has had multiple clients who were victims of doxing, which involves people searching for and publishing information on the internet with malicious intent. Posts were forwarded to potential employers and universities that resulted in jobs and college admissions being rescinded.

Jones believes employers need to communicate their expectations for employee conduct and policies in a clear way so the culture of the company is communicated to the employee correctly. By being open, employees have a better chance of complying because they know what is expected of them.

“A lot of times what we see is employers will create policies and send them out and expect people to adhere to them without maybe entertaining discussion about them to make sure the employees understand what the policies mean and that lends itself to a culture where employees have questions about what is permitted and what is not permitted,” Jones said.

There is a flip side to employers and social media. Depending on the industry, some employers want their employees to be integrated into the community to provide service. Some want their employees wearing their company shirts while coaching Little League or doing community service.

“Social media isn’t necessarily a bad thing for the company,” Nazareth said. “If you have a healthy workplace culture, you want your employees to hopefully align their private behavior to that culture when they are on social media.”