Cracking Down on Social-Media Misconduct

A new survey finds the number of companies disciplining employees for improper social-media use doubling in the last two years. Experts say now would be a good time to revisit and perhaps revamp social media policies to address the growing concern of inappropriate posts and shares on the job.

Thursday, May 29, 2014
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Generally speaking, employers have accepted employees using social media for personal purposes as a price of doing business.

Consider Social Media in the Workplace Around the World 3.0. This recent survey, conducted by New York-based law firm Proskauer, polled more than 100 multinational companies from countries including Argentina, Brazil, Canada, China, Denmark, France, Germany, India and the United States. The survey found nearly 90 percent of companies using social media for business purposes, with 43 percent permitting employees to use social media for non-business activities while at work, and another 26 percent saying they allow some workers to use social media for personal purposes.

Naturally, with the rise of personal social-media activity in the workplace comes a greater risk for improper use of it on the job.

The Proskauer survey found 71 percent of employers reporting they have had to take disciplinary action against employees for social-media misuse, compared to just 35 percent who said the same when Proskauer conducted a similar survey two years ago.

The correlation between more permissive social-media policies and a spike in disciplinary action is clear, says Daniel Ornstein, the London-based co-head of Proskauer's international labor and employment law group, and lead author of the 2014 study.

"This has two consequences. Most obviously, the more people use social media for different purposes, the more likely it is that there will be inappropriate conduct," says Ornstein. "In addition, the [more the] use of social media at work, the more the boundaries between work and personal blur. This blurring puts people off their guard and increases the chances of inappropriate employee conduct at work."

Workers -- and their employers -- find themselves in a much different business environment compared to even two years ago, says Claire Bissot, HR consulting manager at Leawood, Kan.-based CBIZ Human Capital Services.

"In 2012, most companies recognized LinkedIn as the business-approved portal, while Facebook, Twitter, Instagram and other avenues were still considered personal," says Bissot. "Due to this, a lot of companies had these sites blocked, [which] therefore prevented a lot of the abuse.

"Things have drastically changed since then," she says, "and one could argue that almost all social-media avenues can now be used for business purposes. Companies have had to embrace this, and now allow access to these types of sites. Now, more sites are available, so more abuse is possible."

What types of abuse? According to the survey, the most common forms of inappropriate social-media conduct included misuse of confidential information (81 percent), misrepresenting the views of the business (71 percent), inappropriate non-business use (67 percent), disparaging remarks about the business or employees (64 percent), and harassment (64 percent).

Employers are taking note of this behavior -- and are reacting.

According to the Proskauer study, the number of organizations indicating they have policies governing social-media use has gone from 60 percent in 2012 to 79 percent this year, with more than half of the companies with social-media policies saying they have updated them within the last year.

Now may, indeed, be a good time to review -- and perhaps revamp - your organization's social-media policies in order to address growing concerns, says Bissot.

"There has been an increasing number of cases related to disciplinary action due to an employee's remarks on social media," she says. "It can be a slippery slope, and a dangerous path, without the proper guidance and legal review."

In a broad sense, social-media-usage policies should "make sure you address how company communications are handled."

More specifically, she says, employees should be aware that official and internal communications are not to be shared unless authorized, and employers should ensure transparency to the public that employees' views shared on social media don't reflect those of the company.

"This includes a note that social-media [activities] should not [include] comments that reasonably could be viewed as malicious, obscene, threatening, intimidating or [disparaging to] customers, competitors or employees."

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The organization must also ensure that employees see and sign for such policies upon joining the company as well as when policies are updated, adds Hope B. Eastman, a Bethesda, Md.-based principal with Paley Rothman and co-chair of the firm's employment law group.

Of course, policies must also be actively enforced, says Eastman.

"Failure to enforce can be seen as a waiver or can cause other problems down the line," she says, "such as when the company chooses to enforce the policy against one employee but failed to previously enforce it against another."

Before drafting a policy, employers must be clear about the business risks they seek to address, and must "be aware of the ever-changing laws that govern these policies in the United States and in many other countries," Eastman says.

While many organizations have done "a good job of creating straightforward guidelines and social-media policies, this isn't enough," adds Sean O'Driscoll, a Seattle-based principle in PwC's U.S. advisory practice focused on digital consulting.

"This space is evolving more quickly than policies alone can govern," says O'Driscoll. "Successful organizations have taken additional steps to create training, employee certifications, centers of excellence, annual social audits and social-media monitoring systems to help guide their engagement online.

"While some organizations have been very proactive about telling team members what they can't do," he says, "others are moving ahead with playbooks and interactive training that empower the organization to know what they can do, in addition to the implications of adverse usage."

The implications of an employee's social-media activity can certainly be serious for employers, says Ornstein.

"In many reported cases across many jurisdictions, employees have successfully challenged decisions to discipline them on the grounds there were no clear rules or guidelines [in place] to indicate their conduct was unacceptable," he says.

"Accordingly, the most important thing a business can do to defend against terminations is to have clear policies and guidance[s] in place, and then be able to expressly refer to these to justify disciplinary action it takes against an employee."


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