TO POST OR NOT TO POST?

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TO POST OR NOT TO POST?

September 28

08:45 2020

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TO POST OR NOT TO POST?

VCIA virtual conference session focuses on evaluating one’s online presence and company social media policies

By Christopher W. Cook

Did you see Joey’s latest TikTok video? Or the photo that Susie posted from the bar last night? And can you believe what Randy said in his latest Tweet? What’s the story, morning glory? What’s the word, hummingbird?

More individuals are using the internet for marketing purposes during the days of COVID-19, and their reputation and brand could be at stake depending on what they post and share with the public. At this year’s Vermont Captive Insurance Association (VCIA)virtual conference, a session on the first day tackled the subject of evaluating your online presence, because your image on social media may be more important than you realize.

“Can you separate your personal and professional media presence, and if so where does the professional start and the personal end?”

—Tracy Hassett, SPHR
Chief Executive Officer and President
Educators Health, LLC

“It seems we can’t go anywhere these days without hearing about what so-and-so said or did on social media,” said Tracy Hassett, SPHR, chief executive officer and president of Educators Health, LLC. “It is one of the primary modes of marketing and communicating, which makes its use even more precarious, particularly if it’s not done correctly.

“Can you separate your personal and professional media presence, and if so where does the professional start and the personal end?”

Hassett shared two examples from her own experience of how someone’s personal social media page led to controversy:

Perhaps mimicking the iconic 1972 Cosmopolitan centerfold of Burt Reynolds posing nude on a bearskin rug, an individual who had a similar image of himself as his personal social media page’s background image decided to link that page to a professional account. “As soon as this made it to HR, we had to take action,” Hassett said. “Because we did not have specific social media policies in place at the time, we had a very difficult time getting this employee to understand why this was not appropriate. The lesson we learned is that you must make sure you have social media policies.” (More on that later.)
Hassett also witnessed an occurrence where an individual working as a gardener posted a photo on Facebook of him holding a chainsaw beside a downed tree. While that may seem reasonable, the person was on workers compensation leave at the time because of an injury at work. “Four weeks into this employee’s workers comp leave, I had a line out my door of people who wanted me to go to Facebook and look at this employee’s page,” she said. “Don’t automatically assume that whatever appears on social media is accurate. It’s possible that it was a staged picture. While the appearance is not good, it’s important to remember that a picture does not tell the whole story.”

Basic legal standards

Referring to the earlier bearskin rug incident—where the individual believed that his First Amendment rights were being violated—it’s important to have social media policies written down and shared with everyone in the company.

“Employers have to be careful about how they put social media policies together,” said Kerin Stackpole, director at Paul Frank + Collins in Burlington, Vermont, and the leader of its employment and labor law group. “Some specific rules are necessary for employers to follow, but you should also know that, as an employee, you need to think about what those policies say and what they actually mean to you as an individual.”

“No one has an absolute right of privacy as to their social media. If you are putting it out there, you may be held responsible for it.”

—Kerin Stackpole
Director
Paul Frank + Collins

This comes back to how individuals choose to represent themselves online.

“Anything you say or do may be seen by your employer,” said Stackpole. “We have seen people who have been fired for posting things that were later shared in the media that may have been racially charged or relate to gender or sexual orientation.”

A recent example was the 2017 Unite the Right rally in Charlottesville, Virginia.

“An individual was carrying a torch and was making comments about black and Jewish people,” said Stackpole. “In those clips, that person projected an image of himself that his employer was not interested in being associated with, and that employer used the post as a basis to terminate that employee.

“Some people may say that’s a violation of their First Amendment rights. ‘I get to say what I want to say.’ But that’s not accurate.”

Stackpole explained that the First Amendment regulates the role of Congress and not private sector employers. Government employers, including municipal, state and federal employers—as detailed in years of case law—have restrictions as to the rules they can make about employee speech.

However, private employers “get to decide the image they want to project and if you, even in your personal life, are not living up to that image, they have the right to take action,” she said. “Whether or not they have a social media policy, they may decide that you are just not living up to the image they want to project.”

Anyone who chooses to participate in and/or post controversial content on their personal page—regardless of security measures that may be in place—should be prepared for possible consequences. “No one has an absolute right of privacy as to their social media,” said Stackpole. “If you are putting it out there, you may be held responsible for it.”

Not only that, but your private social media pages may also be used by your employer to investigate internal incidents. Stackpole shared a scenario involving a sexual harassment claim at a company. A female employee was featured in a questionable manner in hand-drawn cartoons by a coworker who happened to be a supervisor. The employee denied that her presence at work was accurately depicted in these drawings and asserted that she was professional.

As it turned out, an investigation into her Facebook page revealed several “selfie” photos taken at her workplace, sometimes using the phrase “secret selfie at work.” One photo showed her exactly the same way as she had been depicted in her coworker’s cartoon.

“That led to a question of her credibility because this information can be used in a civil suit,” said Stackpole. “She was confronted with some of those images that she herself had placed into the public realm. That whole concept of privacy is not one that you can hide behind.”

Some states have statutes that to some extent protect certain social media postings.

“Vermont and a number of other states have laws that say an employer cannot require the employee to provide it the password to their social media,” said Stackpole.

For example, if a sexual harassment complaint is made in the workplace and the allegations revolve around social media, the employer can investigate those pages, but if they are not accessible because of security protocols, the employer can’t demand that an employee produce his or her social media credentials and passwords.

An employer could obtain that information from a coworker with whom the individual may be connected on that platform.

“A coworker may say, ‘I know what Karen looks like online. I’ll make those screenshots for you,’ and they hand it to the employer or to someone in law enforcement,” said Stackpole.

Some protection for employees who are non-supervisory is available under Section 7 of the National Labor Relations Act, which was enacted in the 1930s as part of the New Deal.

“The act never contemplated social media, but the manner in which it has been interpreted by the courts is that employees who are non-supervisory have the right to talk to one another regarding the terms and conditions of their employment,” said Stackpole. “That can be in person or on a social media platform.”

Protections do exist, but they aren’t perfect. It’s essential to think about what you want your social media presence to convey.

“If you are having discussions on social media, make sure you remember who you are and what you want to represent,” said Stackpole. “Pick your language carefully, pick what you post carefully, and make sure that the image that you are projecting on your social media is something you’re going to be proud of. You don’t want it to bite you in the backside later.”

Best practices

During the pandemic, with a decrease in face-to-face meetings and an increase in online interaction, “both employees and employers need to pay attention to what’s going on in the social media landscape and in the world so you can react responsibly,” said Emily Malley, director of marketing and business development at law firm Primmer Piper Eggleston & Cramer. “Now more than ever you need to face social media challenges head on; preparation and clear communication will ease this process, but if you avoid this discussion altogether, you can leave your business and your reputation exposed.”

But where would one start?

“The first step is to develop a plan and make sure that leadership understands it and is prepared to share it internally,” said Malley. “Developing a social media policy and guidelines promotes an understanding between your employees and top leadership. It’s important that both sides understand what’s appropriate. A lack of understanding makes it difficult to provide feedback to an employee or to discipline anyone when inappropriate behaviors occur.

“I recommend making this information easy to access on your intranet or in your handbook. At our firm we have a point person, so if we have any questions about social media, we can discuss them with this employee before posting.”

Your social media guidelines also should promote the company’s culture. Scotty Monty, former global head of social media and digital communications for Ford Motor Company, created “11 Commandments” for social media use (see sidebar).

“Instead of telling employees to turn away from social media altogether, he decided to embrace it and see if Ford could use it to benefit the company,” said Malley.

“Both employees and employers need to pay attention to what’s going on in the social media landscape and in the world so you can react responsibly.”

—Emily Malley
Director of Marketing and Business Development
Primmer Piper Eggleston & Cramer

In 2017, LinkedIn reported that employee posts had a reach ten times greater than those of the company’s corporate account. While employers can train employees to become ambassadors regarding social media, however, the idea shouldn’t be forced on anyone.

“Not everybody embraces social media or wants to share on behalf of the company they work for; they might not be ready for that,” said Malley. “Social media is best when it’s honest and authentic.”

Malley shared an example of how turning employees into social media ambassadors benefited a company’s recruitment efforts. Originally focusing on hiring, General Electric (GE) worked with its HR managers to create a social media ambassador program.

“They were trained to understand the social media landscape,” said Malley. “They focused on LinkedIn and were trained on how to teach others what social media is all about and how you can improve your profile.”

After small group discussions and training, GE employees began to share on their pages about the company’s culture and what it was like to work there.

“Within one month they saw an 800% increase in applications because GE managers and employees really understood what the brand was about and were able to clearly share that message,” Malley said. “They spent no money on that initiative and saw a great return.”

Embracing social media “can range from helping you hire quality employees to helping you with your marketing campaign. It’s just a matter of planning and managing that process along the way. Educate yourself on what it can do,” Malley concluded.