Social media — and all its HR headaches — is here to stay. But there’s a bigger problem than that: The legal system is awash with conflicting case law on what your people can and can’t do on the Internet.
So how can HR best advise staff on how to conduct themselves online? The key is to concentrate on trends.
Here are three social media case law trends from Jody Katz Pritikin, an attorney for Katz Consulting & Associates who spoke at the Society for Human Resource Management (SHRM) conference in Atlanta.
Legal reasoning shifting
If you discipline or fire staff for something they do or say online, can employees claim invasion of privacy?
When social media cases first hit the judicial system in the mid-2000s, courts said no way.
After all, they noted, it’s called the World Wide Web for a reason.
But recent case law is backtracking on that stance a bit.
One staffer who was fired for disparaging social media comments got her case sent to trial – the court said the legality of the firing depended on how many friends she had.
Other cases have hinged on the level and extent of privacy settings that workers have set up.
And the privacy issues don’t stop there – the courts have also been unclear about email usage, too.
One court ruled that a staffer’s email to her attorney was inadmissible in court because she used her company email to send it.
But a similar case where a worker used her personal Yahoo email account was found in the her favor.
What was the difference? The first company had a policy telling staff not to expect privacy in firm emails.
The takeaway: Policies matter.
Courts will look to see if you have a social media policy, and if you’ve diminished staffers’ expectations of privacy.
Expectations are key
As more and more firms start social media accounts for their companies, the question of who owns those accounts is coming to the forefront.
Courts haven’t exactly made it any clearer yet – the two most famous account ownership cases are still working their way through the legal system.
In the interim, HR should:
- Partner with IT. Work with Information Technology to set up overrides for staff-run accounts, and
- Educate new staff. Require any staffers working on your social media accounts to sign a form acknowledging the account belongs to the company.
What every policy should have
Social media is evolving, and courts can’t keep up. But that doesn’t mean you can plead ignorance.
Here are 10 things every social media policy should have:
- Value statement. Why is social media important to your company?
- Statement of responsibility. You want staff to own their behavior online.
- Time-wasting warning. If online activities interfere, workers need to know they’ll be held responsible.
- Emphasize employees’ lack of privacy. Courts want to see that you’ve diminished expectations of privacy.
- Reference to anti-harassment and anti-bias policies. Cite specific examples – that way, the NLRB can’t claim its overly broad.
- Monitoring protocol. Reference your electronic communications policy.
- A note on good judgment/respect.
- Reference to code of ethics. If you have one, it applies online, too.
- Warning about divulging trade secrets. Employees need to know they represent the firm online.
- Notice. Let staff know you’ll discipline or fire them if they violate policy.