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Aug 29 2013

Caveat Superior: Employers Can Be Held Responsible For Their Employees Social Media Posts

Most employers already know that many of their employees are engaging in social media while at the workplace. Whether its posting on Facebook, Twitter, Pinterest or Instagram or looking at others’ posts on those time-draining sites, many employers are concerned about how much labor time is being frittered away during these “Digital smoke breaks.” Many have put site-blocking software in place, but the age of the smartphone has made those tools less effective since employees can now do their social media on their own phones.

How Can Companies Be Liable?
But companies often overlook other aspects of their employees’ social media behavior: that they me be held liable for it. That’s right, a proliferation of cases has already occurred over comments, posts and tweets made by employees that have exposed their employers to lawsuits, negative publicity, added expense and additional time-drain. Most of these cases have come in the form of defamation and libel claims but we have also seen cases brought for hostile workplace, sexual harassment, and cyberbullying related to what on employee posted about another employee or about a situation that arose at work.

Facebook-icon[1]Employers can be held responsible for what their employees say on social media in generally two ways: (1) The posts are somehow connected to or related to the employees’ job at work so that a court can find that the posts were made within the scope of an employees’ job. Employers are liable for wrongful or negligent acts committed by their employees under the legal doctrine called respondeat superior. For example, the Federal Trade Commission which, among other responsibilities, monitors the accuracy of claims made in advertising, published a guide in 2009 governing endorsements and testimonials in part to clarify requirements related to “Word of Mouth Marketing”. This FTC ruling and the guideline under it (FTC 16 CFR Part 255 Guides Concerning the Use of Endorsements and Testimonials in Advertising) imposes potential liability on employers for social media comments, regardless of the employers’ knowledge. For example, if an employee endorses a product without adequate disclosures regarding conflict of interest or product warnings, the Company itself may be liable.

(2)The company does not do enough to police employees’ posts and is either aware of or should be aware of harmful posts by employees. Employers and their managers must be vigilant in dealing with complaints of malicious or maligning posts by employees online and deal with them directly or face claims that they hid their heads in the sand and allowed the conduct to continue to the point where it becomes actionable. If an employer knows or has reason to know that an employee is engaging in harmful activity, it may be deemed vicariously liable (under respondeat superior again) if it did not take appropriate action in the face of that knowledge.

What Can An Employer Do?
What a company can and should do about this issue will depend on factors such as a company’s size; its number of employees; its social media use; what the company does in the marketplace
and other factors. So companies should seek counsel specific to them from their lawyers and IT personnel. But there are some steps that every employer can take to protect themselves better against this exposure:
(1) Get appropriate insurance. Your general liability coverage normally excludes damage from caused by social media, bulletin boards, chat rooms, and posts. But specific coverage for this type of claim is available and relatively cheap. Professional, Communications, Data Privacy & Media Liability policies, in many forms, are available as endorsements to your current policy or as separate, stand alone products. Such coverage will compliment your current company-wide risk management program.

(2)Draft and put into place a social media policy for your company and its employees A social media policy should now be standard for every company and every employee manual. Let your workers and managers know what is expected and permitted in terms of social media use both during and the workday and before and after the workday. In the same FTC ruling I discussed above, the FTC specifically states that employers who institute an appropriate policy governing social media participation by employees may reduce their liability exposure:

“If the employer has instituted policies and practices concerning ‘‘social media participation’’ by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision”

Federal courts have long considered what an employer’s employee manual states about tolerance of sexual and racial harassment in deciding whether an employer should be responsible in “hostile workplace” lawsuits. See, e.g., Speaks v. City of Lakeland 315 F.Supp.2d 1217 (M.D. Fla. 2004); Cuesta v. Texas Dept. of Criminal Justice 805 F.Supp 451 (W.D> Texas 1991). While each policy must be specifically drafted for a particular employer, some basic points that should be included are:
Some guidelines in creating a social media policy include :
(a)When posting on social networking sites, employees should not speak on behalf of the company unless specifically authorized to do so;
(b)If an employee mentions the company, its products or its employees in any capacity on any website without prior authorization to speak on behalf of the company, the employee must state that the views expressed are personal to the employee and are not a representation of the company;
(c)Employees must refrain from posting any comments that could be construed as discriminatory, hurtful, bullying or defamatory;
(d)Express that the company does not tolerate discrimination, hurtful comments, bullying or libel and defamation in or about the workplace.
(e)Institute a clear policy and chain of command fro reporting of such conduct that includes anonymity and a promise of no retaliation for reporting such behavior.

(3)Properly document and enforce whatever policy you institute
In all areas of the workplace, employers must stand behind what they say and what they promise employees. There is no point in paying a law firm to craft a policy that is going to be ignored or merely paid lip service to. It won’t protect you. Therefore, when enacting a social media policy you must put your money where your mouth is; meaning, employers must make sure that they take complaints of violations of the policy seriously and treat the employees reporting the offending conduct fairly and in accordance with the established guidelines. Properly documenting the complaint and how it was addressed is the first step. Handling the complaints in an consistent manner is the second step.

Social media has forever changed the workplace. Companies must make sure that they are taking appropriate action to protect and insulate their businesses from claims that arise out of their employees’ use of social media.

2 comments

  1. mcfly

    “The posts are somehow connected to or related to the employees’ job at work so that a court can find that the posts were made within the scope of an employees’ job”

    Commenting on your place of work is “related” to the job but it is not “within the scope of an employees job.” Saying this place sucks for X and Y reasons, for example, is obviously “related to the job” that’s why your saying it but commenting in that fashion can’t be within the scope of the job without twisting the meaning of that phrase. Which I guess is what lawyers and Judges do on a daily basis. Twist the plain meaning of words.

    1. Oscar Michelen

      I don’t think just saying your job sucks can get the employer in legal trouble (which is what the blog post was about). It can get the employee fired however as an employer does not have to keep on an employee who is telling the world his job sucks.

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