Commentary: Social media and your employees: traps for the unwary

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For businesses, social media offers a vast number of benefits for businesses if utilized appropriately, but the costs can be extravagant, both in reputation and actual damages, when it is inappropriate. Businesses must worry about both official social media use and employees’ private pages.


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Kasie Byrd

Social media is a blessing – and a curse. We love seeing our neighbor’s adorable puppy, catching a glimpse of a child’s first steps from miles away, and finding special groups of friends with our same interests. (Personally, I would like to give a shout out to Facebook’s Birds of Texas.)
On the flipside, many of us have witnessed dirty laundry aired by a high school acquaintance, or watched a political debate disintegrate into accusations of hate and four-letter words.
For businesses, social media offers a vast number of benefits if utilized appropriately, but when not, the costs can be extravagant, both in reputation and actual damages. Businesses must worry not only about official social media use, but also employees’ private pages.
With today’s technology, an individual’s private page is just one screen shot away from the public eye. Social media use can be fraught with legal issues related to discrimination, harassment, privacy, collective bargaining, and defamation, among others.
In light of the chaos 2020 has presented, businesses must take preemptive steps to protect themselves and their employees.
In the midst of an election year, global pandemic, imminent recession and civil unrest related to spiraling racial relations, social media is a breeding ground for conflict. Differences of opinion quickly rupture, turning people into keyboard warriors with no restraint; individuals log off incensed and looking for retribution.
Examples of social media crusades against companies stemming from responses to the Black Lives Matter movement and COVID-19 are plentiful.

CrossFit, a well-known workout and fitness program, lost Reebok as an affiliate, after its founder and CEO made insensitive and inflammatory comments about George Floyd and COVID-19. Reportedly, more than 1,000 gyms or facilities previously affiliated with CrossFit terminated their relationship. Walmart recently removed shirts with the phrase “All Lives Matter” after social media backlash. Starbucks changed its course from prohibiting employees from wearing such T-shirts to creating their own line of gear.
In our local community, debates about mask requirements continue to provoke heated debates across a variety of platforms. Social media has become an avenue in which employees, as well as the public, air grievances and seek to influence change. It is undoubtedly a powerful tool for improving customer relationships and engagement, but the fast-moving nature of viral content requires caution.

Businesses should develop a comprehensive social media policy. Companies should aim not to stifle the creativity or viewpoints of employees, but to prevent egregious or illegal content. Policies should be industry-specific and updated regularly to address current events and changing technology.

Employers should be cognizant of potential hotspots when crafting a social media policy. Here are a few tricky areas:

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– Requesting applicants or employees supply social media passwords to their employer for monitoring. While more than half of U.S. states have rules in place regarding employee passwords, Texas is not one of them. The consensus, however, remains that it is bad practice.
– Enacting a policy that prevents employees from utilizing social media to discuss issues protected under the National Labor Relations Act (NLRA), which may include critiques of management or the workplace. The NLRA protection applies to both union and non-union workers and protects “concerted activity” discussing terms and conditions of employment. Businesses should refrain from making blanket rules that prohibit employees from making negative comments about the company or providing that pay and benefits are confidential, thus impeding an employee’s ability to discuss such matters. The distinctions between appropriate and inappropriate employer policies under the NLRA is not always clear. In these situations, the sound approach is to consult with legal counsel.
– Regulations by the Federal Trade Commission (FTC) requiring disclosure of any company affiliation when endorsing company products. The FTC requires honest opinions, from bona fide users, and disclosure of any material relationship, including an employment relationship.
– Potential discrimination when utilizing social media in employment decisions.
– Disclosure of confidential information regarding clients, patients, or proprietary information.

Industry specific rules and regulations posit additional challenges for businesses (e.g. FINRA, HIPAA, etc.). Of course, if litigation is pending or threatened, there is a whole other world of considerations.
– Social media is, no doubt, a fixture in our everyday lives and employers must establish safeguards and act prudently. A carefully-drafted social media policy is imperative.

Kacie Byrd is an associate with Decker Jones, a full service law firm headquartered in Fort Worth.