Social Media and HR: Fifty Shades of Gray

SumoMe

By: Eliot Wagonheim, Managing Member of Wagonheim Law

Over the long weekend, I had a chance to do something I almost never do – I spent time on Facebook. My reasons for choosing to spend my time doing almost anything else go well beyond the scope of this blog, but suffice it to say that my extremely low expectations for both content and enjoyment were met and surpassed. I did, however, find one thread worth considering because, had the person posting been one of my employees, I likely would have fired her.

The thread was started by an intelligent woman in the business of providing professional services. Her initial post contained something of a rant against what can only be characterized as “those people.” She did not offer any descriptions of race, culture or religion, but the takeaway was, at the very least, harshly critical of a certain stratus of people and, whether in a quest to laugh or to vent, was unprofessional and (to this reader) borderline racist.

I know her. And I know that if confronted, her defense would run along the lines of “well, some of my best friends are ***” or perhaps the clichéd “I’m just calling it like I see it.”

The reason the thread stays with me, however, has nothing to do with its content. She is free to say whatever she wants to say. The fact that I am not her most receptive audience, I’m sure, matters to her not one whit. I am not compelled to debate her. Instead, the thread forced me to consider what I would have done had she been in my employ when she posted it.

It is easy to form a social media policy based on absolutes:

Don’t badmouth our firm.
Don’t badmouth our clients.
Don’t discuss or refer to client matters on a public forum.
Don’t reveal trade secrets.

But what about when the thrust of the comments are in the eye of the beholder or involve controversial issues? There are many issues that divide us on which reasonable people can disagree. Is it sound or even enforceable policy to restrict one’s employees from weighing in? More to the point, wouldn’t many, if not most, employees bristle at that kind of oversight by their employer?

Here, there is no bright line. Each employer has its own boundary – that line over which even a private post, even to a limited audience, becomes detrimental to the company. In my experience, most employers have adopted a viewpoint akin to Justice Potter Stewart’s oft-quoted comment about pornography: “I can’t define it, but I know it when I see it.”

Unfortunately, that’s not really the issue, is it? Once the employer sees it, the horse has already left the barn. The post has been made, seen, and perhaps re-posted, liked, commented on and forwarded.

The question is whether, right now, today, your employees know where your line is. After all, it is one thing to blow something up by stumbling into a minefield and quite another to detonate one after having been provided with a map.

The map I am suggesting is a hard one to draw, cannot be drawn well in a vacuum, and should never be presented as a proclamation from on high. Your company’s line on social media does not begin and end with a paragraph in your personnel manual or a clause in your standard employment agreements. Those are good provisions to have, but they do not end the discussion.

Instead, the line must be identified, reviewed, and discussed by the people who matter and are expected to toe it. The good news is that this standard makes it very easy to tell whether you have failed to implement an effective social media policy. If you imagine a disciplinary conversation elicited by a post and both sides of the conversation are shocked – the employer to have read the post and the employee to have been called on the carpet for it – the policy implementation was a failure.

The social media landscape is a minefield. Any employer who understands the reach and effect of social media has an absolute obligation to provide each employee with a map. More than that, however, is the obligation to ensure, through continuing dialogue, that every employee can read it and use it to navigate.

Otherwise it’s all gray. And to give lie to the title of this posting, there are considerably more than just fifty shades.

Original Post Available Here