ROGERS — Employers and their workforce are faced with ethical and legal questions that were never an issue until recent years and it’s all because of social media. The battle between protecting the company and respecting First Amendment rights has been fought out in the workplace and in the courts.
Benjamin Shipley III, a director with Cross, Gunter, Witherspoon & Galchus P.C., has been practicing law in Arkansas since 1980. Shipley spoke about the legal ramifications of social media and the workplace Wednesday (Sept. 19) to a group of human resources and benefits representatives who attended the Bean Hamilton Executive Forum in Rogers.
“I read recently that the average person checks their email or Facebook 34 times a day,” he said. “I would suggest that all of your employees are on social networks. I would be shocked if they are not.”
Shipley said some employers have tried to limit access to social networking sites but that it’s not necessarily effective.
“The reality is, they’re doing it anyways. It’s how people keep up with folks,” he said.
Shipley offered a study that shows about 50% of all employees ignore policies that govern social media usage during the workday and some even alter settings on company equipment to gain that access. The drastic rise in mobile device usage means it’s easier than ever for people to be on social networking sites throughout the day, he added.
The law is on the employee’s side in regards to being allowed to post on social media about their job, at least in most cases. Courts have determined that complaining about work conditions including pay and supervisors is considered protected speech and employees cannot be fired for it. There is an exception if the employee crosses certain boundaries.
“Litigation is trending up around the country but there have not been that many cases in Arkansas yet,” Shipley said.
Successful litigation regarding use of social media usually falls under one of only a handful of categories: defamation, invasion of privacy, wrongful discharge, tort of outrage and sexual harassment.
Shipley gave an example of one employer who won against an employee who was fired after he refused to remove a Facebook post falsely accusing an executive of accounting malpractice. That employee did not take the proper steps to verify that a rumor about the alleged behavior was true and it was later proven to be false. The employee still refused to remove the post, claiming it was free speech. The courts decided it was defamation.
Employers could be held accountable if an employee is using social media to harass or defame another worker if the employer knows about the problem and does nothing to stop it. Knowledge of discriminatory or harassing content may also expose the employer to liability, he said.
On the flip side, a growing number of employers—Shipley proposed up to 60% -do a background check on potential hires using social platforms. The risk with doing that is if an employment decision is made on what is later determined to be a discriminatory reason, he said.
Employers must also be careful in how they word policies regarding social media, Shipley said.
Discipline is allowed for excessive use of company equipment for personal gain and they have the right to monitor content on company equipment, he said. Employers can expect that proprietary or client information is not divulged on social media but a policy should already be in place that prohibits this in all situations, according to the discussion.
“Be specific in what you prohibit,” Shipley said. “Be broad in what you allow.”
Ted Rubin, chief social marketing officer for Collective Bias in Bentonville, is a vocal advocate for allowing employees to be involved with social media during the work day.
“It is the companies who are losing big time if they do not allow access to social channels, many just do not get it yet,” he said in an interview Wednesday afternoon. “Everyone has a smart phone, so now they hide it under the desk, go to the bathroom, take extra cigarette breaks, etc. Companies are not making people more productive, they are making them less productive and encouraging and to work hard at deception—a set-up for failure.”
Rubin also spoke of missed opportunities when employers try to prohibit social media access.
“In addition they do not get the benefit from their employees’ contacts and outreach to their social graphs. Employees can and should be your biggest advocates,” he said. “Employees who are demanding access are standing up for something that is not only important to personal freedoms, but something companies cannot possibly continue to deny.”
He adds that companies should educate their employees to best practices, empower and incentivize them to advocate for the brand, and encourage them to build their personal brands.
“It's plain and simple — employee censorship on social channels is disaster for brands and a huge lost opportunity,” he said.