Employers may think that because they do not have a formal social media program that they do not need to worry about their online presence.
Whether you choose to actively participate or not, you need to be aware of what is being said about your company and what your employees are doing online, says Lori Clary, of counsel at McDonald Hopkins LLC.
“Employers need to be cognizant of social media because, whether they decide to use it affirmatively or not, it’s likely that many of their employees — not to mention competitors — are utilizing it. A company’s reputation is potentially being impacted by social media regardless of whether the company is doing anything with it or not.”
Smart Business spoke with Clary about the benefits and risks of social media and how to create an effective social media policy.
What would you say to a company that says social media does not impact it?
It may not have impacted you before because its exponential growth has occurred only in the past few years; so it is not surprising you have not yet had to address issues presented by social media. But even though social media may not have affected you yet, it is eventually going to impact you in some way, shape or form. You can either deal with it in a proactive manner by looking at the situation and its potential legal implications now, or be reactive later once problems arise.
What issues can arise for employers regarding social media?
There are a host of employment law matters and traditional labor law matters. For example, if you are using social media to recruit and screen potential employees, you may be privy to information you could not necessarily ask for on an application, which can get you into trouble under anti-discrimination laws. Another area with respect to employees’ rights falls under the National Labor Relations Act. Employees have certain rights to engage in what is called protected concerted activity and, as an employer, if you try to quash that type of discussion, you can find yourself on the wrong side of the National Labor Relations Board.
What are some issues outside of the employment arena?
A lot of companies are struggling with managing their brand in the social media world. If your company is putting information out there, you have a great degree of control over what is said. In the social media realm, however, you have customers providing feedback and employees or others associated with your company who may have their hearts in the right place but who are doing things that are not consistent with the brand. As a result, marketing and advertising problems can arise.
Also, if you become aware through social media that a product you offer is being used in ways it was never intended to be used, you may need to address that to reduce the risk of potential liability for injury claims. Social media can also increase the risk of disclosure for trade secrets or other confidential or proprietary information. Given the reach of social media, such a disclosure can pose a significant threat to your competitive advantage.
How can employers manage their concerns?
To a certain extent, you have to accept that part of the power of social media is that it is interactive and there is going to be a loss of control — which employers inherently dislike. However, you can go a long way toward managing those issues by establishing a social media policy that tells those you have control over, such as your employees and vendors, what you expect from them and how you want to manage social media to maximize the benefits and minimize the risks.
Should employers be monitoring what their employees are saying about them online?
If a company is able to monitor what is being said about it, it is worth doing so. It is impossible to monitor everything, though, and that is where a policy can help you. It gets everyone on the same page. The policy should incorporate the existing rules of conduct, emphasize personal responsibility and good judgment, explain the company’s expectations, spell out the consequences for violating the policy and designate an appropriate resource to answer questions.
Make it clear to employees what you expect of them, so if an issue does arise, you can take the necessary steps to address it. Keep in mind, however, that a policy is only as good as the training and communication that follow it. And make sure it is consistently implemented. Having a policy and not following it, or not following it consistently, often puts you at greater risk for legal liability. If enforcement is inconsistent, it can have an impact on morale as people see what the company says does not really matter as much as what it does.
Can an employer design a policy on its own?
Because you cannot just go online and adopt a policy that someone else has developed for their own unique circumstances, the process should be a partnership with your legal adviser. The adviser needs to know about your culture and the ways in which you use social media, because the policy of a retail venture is going to be very different from that of a law firm. An adviser can help you put together a policy that meets the needs of your company and that is in step with where the company is as a whole.
To be effective, it is not something that you create and put away. It should be reviewed at least annually to update with changes in the law or technology. If it is a new policy, you may want to look at it more frequently to make sure it addresses the issues your company is actually facing instead of ones you thought it was going to face.
Employers cannot stick their heads in the sand. It is time to assess where you are and decide what approach you want to take so that you are not blind sided as social media continues to develop.
Lori Clary is of counsel at McDonald Hopkins LLC. Reach her at (614) 458-0031.