Hardly a week goes by when there isn’t news of employees being fired over their social media behavior. One doctor in Ohio was fired over anti-Semitic tweets, when she wrote that she was going to give Jewish people the wrong medicine. A day-care employee posted on Facebook that she hates being around children, so she was let go. A math teacher in Colorado was fired over racy tweets.
When employees post hateful or inappropriate comments that are considered racist, sexist or homophobic, they often go viral. Where they work is often exposed, and suddenly a company can find itself dragged into the headlines. Where an employee posts doesn’t matter — even if employees posted during their personal time, outside of business hours — it still can be grounds for dismissal.
Firing an employee may seem like a logical step if they are out of line on social media; however, the rules aren’t always so clear. Social media is still a relatively new concept, so the law hasn’t necessarily had time to catch up with it. Furthermore, employers might not be aware of what employees can and cannot say online. For instance, one woman who ranted on social media about her job was subsequently fired, but she struck back with a lawsuit. The matter was settled as it was within the employee’s legal rights to complain about her job on social media.
“There are some labor laws around what you can and cannot do and what you can tell your employee to do,” says Rose Miller, President of Pinnacle Human Resources. “There’s a thing called protected concerted activity. An employee can talk about your company in terms of their wages, benefits and work environment and you can’t tell them not to do it.”
It’s critical that law firms come up with specific social media policies before taking any sort of action against an employee.
So what’s an employer to do? Knowing what would qualify for disciplining or even letting an employee go is critical for law firms. Otherwise, they could get themselves into legal hot water. Aside from looking into the legal aspects of social media posts, such as protected concerted activities, law firms should know what types of posts are problematic.
WHAT QUALIFIES AS A BAD SOCIAL MEDIA POST?
Posts that are hateful in nature are clearly off-limits, even if they appear on personal accounts. Bullying and sexual harassment of other employees are also issues that need to be dealt with seriously as well.
According to law firm consultant Matt Starosciak of Proven Law Marketing, any post that mentions a client — whether it’s positive or negative or if it divulges confidential information — is a big problem.
“Both current and prospective clients will make judgments about the firm’s quality of representation and ability to keep information confidential from what they find online,” Starosciak says. “Employees should not be posting anything that diminishes a prospective or current client’s positive impression of the firm. Those mistakes will cause a loss of revenue either directly or indirectly over time, and that’s a problem for any business.”
Anything that violates a company policy could also lead to an employee’s termination. However, it’s critical that law firms come up with specific social media policies before taking any sort of action against an employee. It’s best to be proactive rather than waiting till you find yourself in a difficult position.
CREATING A SOCIAL MEDIA POLICY
While 51% of companies in the United States have rules regarding social media in the workplace, only 32% have guidelines that highlight how employees should be conducting themselves when posting anything online. Law firms need to put policies in place that cover how social media can be used and outline what constitutes an inappropriate post.
Firing an employee may seem like a logical step if they are out of line on social media; however, the rules aren’t always so clear.
Starosciak says a good place to start is to strongly discourage employees from posting anything about the firm online. “Law firms are not pizza shops. Because there are so many potential problems for law firms when it comes to social media, it’s better to stay away from it completely,” he says.
This includes any discussion about clients. According to Mary K. Young of Zeughauser Group, employees should not talk about clients without their permission or take a side on an issue without vetting it internally. “You can say things like, ‘Here is the likely development,’ and you can comment to the press and explain what is going on without taking sides,” she says. “There are a lot of ways to be engaged without offending clients. That should be spelled out in the policy.”
Employees may have a lot of strong opinions on a lot of topics that they post online; as long as these comments aren’t off-color, they are fair game. Miller does recommend instructing employees to say that post is their personal opinion and that they don’t represent the company. For example, say an employee shares a post related to a political hot point. If your firm represents lobbyists on the opposing side of that issue, it’s a problem. “You need to separate private technology and company technology,” she says.
Once your social media policy is in place, Young says it’s imperative the firm trains their employees on it. This training should cover the policy as well as best practices for social media. If employees still violate it after this, it’s time to have a serious discussion that may result in job termination for that employee.
HAVING A TOUGH CONVERSATION
You may have a zero tolerance policy for hateful or harassing posts. But what about for posts that may cross a line, but may not be as off-color? That’s when law firm leaders need to speak with the employee to ascertain what happened.
“Speaking with the employee about the impact of the post on others, sharing why it is not appropriate and asking that it be removed is a good first step,” says Kendra Fuller, SPHR, SHRM-SCP, Senior Consultant at Swift HR Solutions. “Supporting this action with increased awareness and education can help minimize future events.”
Law firms can also put employees on a performance improvement plan. Instead of taking disciplinary action, they help the employee understand what was wrong to make sure it doesn’t happen again. “Give them a chance to do the right thing,” says Miller.
Another way a law firm can safeguard itself against sticky social media situations is to stay on top of them. This means setting up a Google Alert so they can see when a company name is mentioned.
If you are an HR professional within your firm, these tasks are likely to fall to you — and your firm is better poised to handle these situations.
Another way a law firm can safeguard itself against sticky social media situations is to stay on top of them. This means setting up a Google Alert so they can see when a company name is mentioned. “This is something they should be monitoring,” says Miller. “This is important especially in highly competitive environments.”
GOING BEYOND SOCIAL MEDIA
Ensuring success with a social media policy goes beyond creating a document and doing a training on it. A culture shift that involves valuing employees should be put into place. According to Fuller, leaders should create opportunities for conversation.
“Policies alone may set an expectation and consequences for violation, but a larger shift needs to happen in our workplaces,” says Fuller. “So many leaders state that ‘employees are our most valuable asset.’ However, they fail to engage in actions that both protect and educate their people throughout the full employee lifecycle. By setting an inclusive, respectful culture that is evident in how we recruit, interview and select, manage, develop and exit staff members, we embed the desired culture that supports open and candid communication, inclusion and respect.”
