Attorney's key to social media policies Be specific, but not too strong

Brett Johnson//January 30, 2017

Use common sense — seems like an adequate rule for social media activity related to work.

In the courtroom, however, no rule would prove more useless.

“When it comes to the legal aspects to policies governing what an employee may or may not do on social media, there’s a lot to know,” attorney Melissa Salimbene said. “And putting in place a two-sentence policy is not going to be sufficient.”

Salimbene, who focuses on employment litigation and other areas at Chiesa Shahinian & Giantomasi P.C., said one of the first things an employer should know about social media policies is that every company should have one.

She emphasizes that, even if the company has one in place, it should be reviewed and potentially tweaked if it doesn’t have the sort of specificity that could hold up under scrutiny.

“You need to define and explain what is appropriate and inappropriate conduct — it’s not nearly enough to just say, ‘No engaging in inappropriate conduct on social media,’” Salimbene said.

In one example, Salimbene referenced a case in which an employer had a policy that discouraged disparaging or harsh communications on social media regarding the employer.

An employee who described a workplace situation and called a supervisor a “scumbag” on social media later won a lawsuit against that employer because the policy was found to be overly broad, as it could also limit a worker’s right to discuss conditions of employment.

Policies must also be very specific and clear in other areas, such as what constitutes confidential information that cannot be shared. The sort of online communication that classifies as harassment should also be rendered specific in HR policies.

Age-old problems
It’s commonly understood that it’s not legal to overlook someone based on age, but getting a human resources department to look the way of someone nearing retirement age for hiring or career advancement has always been — and continues to be — an issue, according to HR professional Laurie Murphy.
“There are those situations in which there might be hesitance to hire someone thought to be at the last stage of their career,” Murphy said. “Companies are making assumptions in some cases, like that someone is just looking for a job for two or three years and then they’re going to quit to retire and they’ll have to fill the position again.
“If someone’s 62 years old, they could think the employee plans to quit when they are 65 and they aren’t telling me that, but no one is going to tell you when they’re expecting to quit their job.”
In truth, the average tenure for any employee in the United States has been reported to be just under five years on average, currently, according to Murphy.
“That tenure is predicted to become a shorter term in the future,” Murphy said. “So expecting someone younger to stay on board far longer is not a fact and is not realistic.”
It’s also sometimes the perception from HR that an older individual may take longer to train, particularly when it comes to technology.
“But it’s all artificial reasons that are believed to be well-intended for the business — it’s all based on speculation and not reality,” she said.

But Salimbene said employers shouldn’t favor totally restrictive policies.

“It’s complicated, because you want a very inclusive social media policy that’s going to cover everything, but you have to be so careful not to be too confining,” she said. “You can’t make a policy based on punishing negative statements about the company on social media.”

Another issue for employers to think about is the ownership of social media accounts, Salimbene added.

She described a situation in which a news company in California hired someone to write and share articles on social media. After amassing a large Twitter following, that person then went to a competitor and brought that following along.

“This was (a case that was settled, but) what it teaches us is that employers and employees need to figure out who is going to own what when that relationship ends,” Salimbene said.

Legal questions surrounding these new media arise constantly. That will continue to be the case.

“There may be pros and cons to it, but social media is not going away, and I can’t think of an industry that is not touched by it,” Salimbene said.

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