Free speech, social media and employment policy

Most people don’t know what is meant by free speech or the rights to which one is entitled. In the United States, only government bodies are prohibited from restricting free speech. Private businesses have no or few restrictions in limiting what their employees say or even what they allow non-employees to say on their property. Of course there are a few exceptions; the government can forbid citizens from yelling “fire” in a crowded theater or “I have a bomb” in airport security screenings. Likewise, employees who whistle-blow in the public interest are protected from employer duress. As an employer, you have the right to establish policies restricting employee expression and unfortunately, may have the need to do so. If you don’t have one already, it may be time to consider developing a social media policy for three basic reasons:

  1. Protect privileged business information
  2. Avoid lawsuits
  3. Good will

1. Protect business information:
There are two kinds of speech, public and private. Public speech is not always obvious but includes anything you post to Facebook, Twitter etc. Private speech is conversation between family members, close friends, members of an organization and yes, information shared between employees of a business. Meaning an employer can fire an employee who speaks too frankly about details or events in the workplace in a public place. This is not the same thing as trying to prohibit employee water-cooler private conversations (a waste of time) but you can prohibit certain speech in public as a matter of policy. I can’t tell you what you should or shouldn’t allow employees to say about your workplace in a public place only that it is easy for passive readers who are familiar with your industry to put innocent information your employees say into context -and to your possible disadvantage. For this reason, many businesses have found it beneficial to designate a point person to manage their public face.

A grey area employers face is what their employees say that has nothing to do with the business. Generally, if people are identified as your employees in their public profiles, they should avoid any controversial (sex, politics and religion) topics. You must be impartial; if you have looked the other way when employees have endorsed candidates or positions you favor but then discover one employee supports tenets you find repugnant and then seek to limit their expression, you could face a civil suit. These are heady decisions and must be weighed in developing an employee social media policy.

2. Avoid lawsuits:
If individuals are known to be your employees and they say negative or untrue things about your competitor in a public place, you could be held liable. Even if you weren’t sued, it would make your company look very unprofessional. Having a policy can limit problems like this.

There is the potential you could also be sued by your own employees if you don’t take an active role in policing social media in the event of bullying -such as the case of one business that fired 27 employees after they made disparaging remarks about a co-worker’s weight and sexual orientation. Most courts have agreed that such remarks on social media sites constitute harassment or contribute to the creation of an inhospitable work environment. In other words, not only should employees not discuss topics pertaining to the business and its customers and competitors, they should probably not discuss each other either. Not publicly anyway, or in any way that could be linked to your enterprise.

3. Good will
The last reason to consider developing a social media policy is good will. You don’t want to turn off any customers. Unless one’s business is overtly political in nature, this goes for the business owner too. Perhaps you don’t care about alienating other people whose opinions differ from yours but your rhetoric or that of your employees could turn off atypical buyers who are gift shopping for someone who is your target customer. It is best to be neutral with respect to politics, sex and religion in public social media. If in doubt, don’t.

If you’re interested in developing a social media policy, here are sites I selected to represent a broad range of options and opinions (feel free to suggest others):
Discipline and Workplace Rights (City of San Jose)
Promoting Privacy And Free Speech Is Good Business (ACLU)
How to Develop a Social Media Plan for Your Business in 5 Steps
How To Develop a Social Media Policy and Protect Your Company’s Reputation
How to Develop a Social Media Policy

If you have a policy, it would be great if you mentioned how you went about developing and implementing it as well as any pitfalls you’ve experienced. Icing on the cake would be a good template if you know of one. Thanks.

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