By: David J. Lynam
Lynam & Associates, Chicago and Barrington,
Illinois
Employers and workers alike know that “social media” has become a
buzzword used to encompass everything from marketing strategies to what
employees are wasting time with at work. While most people know the basics of
social media, like the sites and what they can do for you, most people don’t
realize that there are rules for what you post, who you post to, who you search
and what you can control.
Although social media interactions mostly take place in the online world,
there can be very real benefits and consequences for any employer, including
claims of defamation and/or discrimination based on the business’s use of these
sites. In addition to employers and business owners, employees can face
embarrassment, discipline, and even termination for doing the wrong thing on a
social network. For example, it was just reported that Apple, Inc. – which has
strict rules regarding online comments by its employees – fired a store employee
for making unflattering comments about Apple on his Facebook page.
This two-part series will examine the benefits and the rules for social
media, including Facebook, Twitter, and online review sites. In this Part I, we
will discuss the benefits and rules from the employer and business owner
standpoint, describing what you need to know about online marketing,
interactions with employees, and online reviews. Part II will view the benefits
and procedures from an employee’s perspective.
Marketing and Benefits
Despite the rules that apply, using social media is an integral part of doing
business today: employees and clients – both current and potential alike – look
to your online presence just as they do your in-person presence. Company
profiles on Twitter, Facebook, and LinkedIn can be a resource for potential
clients and potential employees, as well as a useful forum for you interact with
each of these groups. However, as in print media, any marketing and information
provided via online social media must be truthful and not misleading. Most
social media sites have their own policies and rules regarding promotions and
content that you may post, which you should always review before utilizing the
sites. Additionally, you should monitor the privacy functions of these sites and
determine whether you want employees, clients, and/or the general public all
viewing the same content, or whether you would like to specify what content
specific groups should be allowed to access.
Are you “friends” with your employees?
Employers must know the rules before utilizing any benefits of social media.
As little as five years ago, employers may have safely assumed that social
networking was only an issue with employees under the age of 25. However, Pew
Research Center has reported that the use of social networking sites like
Facebook and Twitter has increased 100% in last year for those 65 and older,
meaning 1 in 4 of that age group now have an account. These sites currently
account for 25% of all time spent online in theU.S., making social networking
the number one web activity. As such, social media is no longer something that
employers and business owners can ignore.
An employer may initially wish to completely control or prohibit its
employees’ online comments and interactions in an effort to avoid any possible
problems. However, not only is total control or prohibition implausible, the
courts have also ruled it to be illegal. Just as the National Labor Relations
Act prevents employers from keeping their employees from meeting outside of work
to discuss working conditions, the courts have found that employees “meeting”
online and talking about working conditions in any form, even in a Facebook
post, is protected labor speech. As such, there are guidelines employers should
follow when it comes to regulating employees online conduct.
First, there should be a written policy circulated to and signed off on by
every employee. The policy should detail what is and is not acceptable social
networking behavior for employees. Your business has every right to ensure your
employees’ online profiles do not reflect negatively on your company. In
addition, the policy should make sure that certain information – including names
of your company’s customers, any protectable trade information, and/or
confidential client information – is kept confidential. The policy should
address the fact that the company’s anti-discrimination, anti-harassment, and
confidentiality policies still apply to employees when they are online, even
during after work hours. Keep in mind, though, that while some employer rights
are retained, the policy cannot be so broad as to prevent any discussion of
work.
Once a policy is established, employees should be given a chance to review
and ask questions on what will be considered proper and what could lead to
discipline. Ideally, there should be a way for employees to report possible
problematic activity and request advice as to appropriateness before posting on
social media sites.
In addition to developing a written social networking policy for employees,
beware of how you access your employees’ online identities. You should disclose
who you are if “friending” an employee, and should never sign on to an
employee’s profile, whether or not you have permission to do so. While it may be
tempting to see how an employee acts when the boss is not around, courts have
considered some aspects of online profiles to be private, and you may be
violating an employee’s rights by accessing his or her site.
Finally, while employers are allowed to perform online research on any
prospective employee before hiring, they still must follow all
anti-discrimination policies and ensure that (1) the research does not violate
the prospective employee’s privacy rights, (2) the research is accurate, and (3)
certain protected characteristics which can be discovered on these sites, such
as race, do not enter into the hiring decision.
Online Review and Rating Sites
Employees are not the only important social networking presence. Whether or
not you actively maintain an online presence for your business, one is likely
being built; a presence that is extremely important and can be viewed by any
potential customers or employees.
While every business owner knows that word-of-mouth recommendations are
useful for business, the new reality is that a Tweet or a Yelp review could be
just as useful, if not more. The Washington Post reported a study by Michael
Luca of Harvard Business School showing that a rating increase of one star on Yelp
(an online rating and review site) leads to a 5-9 percent increase in revenue.
While restaurant or store reviews and choices may be one thing, the use of
online reviews in professional fields has also increased as people grow more
comfortable in trusting online reviews and ratings.
An employer or business owner should not only regularly review what is being
said in online reviews, but should know that there are some ways to control what
is being said – and also some ways to get in trouble in this area. As an
employer or business owner, you can use tools such as Google Alerts to keep up
with what is being said about your company online and to use existing reviews –
both positive and negative – to assess how your company is doing.
If you see that your company’s status is either not what you would like to
see or is non-existent, there are some ways to encourage customers to provide
reviews. The best course of action is to kindly ask your satisfied clients to
take the time to write a review. However, be aware that there are potential
legal pitfalls to asking people to post favorable reviews for your business. The
Federal Trade Commission has stated that as with any product endorsement, it
must be clear if the reviewer/blogger/rater has been paid or has any connection
to the company. This means that you cannot give cash to customers to write a
positive review, nor can your employees pose as customers online without
disclosing their status. These rules extend to any promotion of your products,
so if you decide to tout a product of yours on an industry message board, you
must disclose your affiliation with the company.
One inescapable reality of online reviews is that some are bound to be
negative. If you are concerned about the number or seriousness of negative
reviews of your company, most online review sites will allow you to directly
respond. In addition, some review sites require some verification of
truthfulness and you can demand the removal of any false statements. Our law
firm has had success in obtaining the removal of negative statements on behalf
of clients, which can be laborious. Otherwise, there is frequently little that
can be done about truthful negative opinions other than having thick skin and
ensuring that there are offsetting positive comments and
reviews.
Conclusion
The best advice is to view your actions on social media sites just as you
would any in-person interaction: if you would not rifle through a future
employee’s private information in person, don’t do it online; if you would not
pose as a satisfied client to lure in future clients, don’t do it online; and if
an employee is allowed to make the comment while talking to co-workers outside
of work, they may be able to make it online. Working with legal counsel to
develop an appropriate social networking policy and consulting legal counsel
when using a new online marketing strategy will help a business utilize all that
these forums have to offer, without running into an unanticipated and costly
lawsuit.
David
J. Lynam is Principal of Lynam & Associates (www.lynamlaw.com), which has
served its clients since 1990. The firm represents small and mid-market U.S. and
international for-profit and nonprofit companies form its offices in Chicago and Barrington, Illinois.
David is a graduate of the Loyola School of Law, attended the Hague Academy
of International Law, and is admitted to practice before the Illinois Supreme
Court, the U.S. Supreme Court, and the U.S. Tax Court. He gives
professional legal education lectures on a variety of topics, is an author on
contracts, professional liability, employment law, trademark law and other
legal issues. His firm also publishes
the Illinois Business and Tax Law Blog, which can be viewed at www.lynamlaw.com/blog. David is a member of the Chicago Bar
Association, co-chair of the Entrepreneur Group at the Union League Club, was
recently appointed to the membership committee of the Small Business Advocacy
Council and serves on the Estate and Gift Tax Committee of the Illinois CPA
Society. You may contact the firm at firm@lynamlaw.com or 312.641.1500.