Can You Protect Your Small Business from Social Media Outrage?

As a small business owner, you might have close relationships with your employees and feel that they tell you everything — you know what they’re frustrated about, you know what they are excited about, and if there is any tension among team members, you see it. 

But what happens when your team members are hiding something from you and instead share it on social media? Or they complain about customers on social media, the news picks it up and all of a sudden, your company is blacklisted? 

We’ve seen the horror stories, so what can you do to prevent it?

Policies

Like many other issues in employment law, a well-crafted and well-followed policy can provide the framework. But, you can’t just tell your employees they can’t talk about you on Facebook.

The National Labor Relations Act (NLRA) Section 7 applies to all employers and protects “concerted activity,” the employee’s right to organize a union or protest employee treatment and employers cannot interfere, restrain or coerce employees in the exercise of their rights. Applied to social media, you cannot place an outright ban on employees from discussing work-related issues on social media. However, you can prohibit them from:

• Commenting for or speaking on behalf of the company without permission
• Making negative or disparaging remarks about other employees
• Disclosing company confidential, proprietary or trade secret information
• Disclosing information concerning clients or customers
• Misrepresenting products, services, or employees
• Using the logo, trademark or graphics without permission

Anything beyond those prohibitions falls in a category that could be interpreted* as infringing upon your employee’s rights and you could get in trouble with the National Labor Relations Board.

So, what can you do?  Use a civility code in your policies - require employees to treat customers, competitors and members of the public with professionalism and courtesy. Include a disciplinary procedure in your policy that you will follow, and actually follow it. Ensure that all of your employees sign the social media policy, just as you would and should do for other policies.

Beyond addressing comments about the company and its employees, what should you do about problematic social media posts by employees unrelated to work?  If an employee posts about illegal drug use, violence, or other illegal activity and you are alerted, what can you do?

In Iowa, employment can be terminated at any point, so you could fire the employee on the spot if the situation calls for it, or you can follow your discipline process.

Recruitment

In addition to addressing social media with your current employees, more and more employers are considering whether and how they should evaluate the social media accounts of prospective employees. With some exceptions, employers legally can examine a candidate’s social media presence as part of the recruitment process, but should you?  If accessing a candidate’s social media turns up the wrong account, you risk making uninformed decisions about a particular candidate. You are also at risk if an individual’s social media profile reveals information about the candidate’s protected status (race, gender, national origin, LGBT status, veteran status, disability, religion, etc.), and you make a hiring decision based on that information, whether it be explicitly or implicitly. Further, in accessing a candidate’s social media page, an employer may inadvertently violate the Fair Credit Reporting Act (FCRA).

Regardless of the decision on whether to allow or prohibit examination of social media of candidates, you should ensure that the decision is in your policies and that anyone involved in the hiring process is familiar with the policy.

Moving Forward

You’re not going to be able to stop employees from sharing their feelings on social media - that’s what it is there for, but by writing a policy, publicizing the policy, and enforcing the policy, you are taking the right steps to minimize your risk. Promoting a workplace that encourages constructive conversations can help as well.

**Note that the National Labor Relations Board (“NLRB”) had a stricter interpretation until recent years. When political winds change, enforcement may change, so it is prudent to check with your employment attorney to review policies to ensure they are compliant with the most recent interpretations of the law.

This content was presented at the February 2019 Top Five event. For more information on the Greater Des Moines Partnership’s Top Five series, visit the Business Resources page. While there, be sure to register for the next Top Five series.