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Risk of fallout: Employers need clear social media policies for employees

By Gina Gallucci-White, BridgeTower Media Newswires

When insurgents stormed the U.S. Capitol building on Jan. 6, many of them 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, but many lost their jobs due to other 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 at McMillan Metro in Potomac, Maryland, advises 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 an employee is 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 critical business 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.

Melissa Calhoon Jones, an attorney at Tydings Law in Baltimore, Maryland, 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 and establishing boundaries to not violate company policy.

Nazareth encourages clients to not actively monitor 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.

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, she added.

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

“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 they may use social media 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 people are unemployed and overqualified for positions, so they shouldn’t let their social media posts sabotage their 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 said 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, resulting in job offers and college admissions being rescinded.

Jones said she 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. When the company is open about its standards, 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.”