graphic for The 2018 Index of Predictive Tools in HRTech: The Emergence of Intelligent Software

 

picture of woman with webcam on shoulder monitoring her social media work

Lose the disclaimers, drivel and drama. Social media monitoring doesn’t protect your company.

The Wall Street Journal recently published an article: Should Companies Monitor Their Employees Social Media? It gave both pros and cons. I wasn’t clear on what the pros to monitoring were. The concerns were employees might reveal private information or trade secrets, and there might be something said that could damage the company’s reputation.

Okay. How exactly does monitoring help these issues? When you monitor, you see the things that have already been posted. The internet cats are out of the bag, clawing your chair, and puking hairballs on your brand. Even if you catch it early and delete it, it is cached somewhere. And you have no way of knowing who or how many people saw it.

If you want to prevent people from saying things online that they should not say, teach them what is off-limits and why it’s important to the company or the people involved. Help them develop the knowledge and understanding they need to make good decisions.

In the days of instant communication and the ability to publish broadly, monitoring what has already been published won’t help solve the problem.

Information and training will.

Here are a few other reasons monitoring employee social media use is a bad idea.

Needless Drama

When you spend a lot of resources paying attentions to lots of little bits of information, they gain more importance than they deserve. The monitors have to justify their time and expense by making information they learn more important than it is. And every once in awhile, something will come through that will make the monitor angry, or scared, or hurt their feelings. Then positions get taken, sides get chosen, policies get invoked, and pretty soon, no one is actually working.

Most of what’s out there is silly, meaningless, fun, stupid, boring, and sometimes even really, really great. It also has a very short shelf-life and disappears quickly if nothing else happens. So leave it.

The flip-side is that if something really important get posted when it shouldn’t, you’ll hear about it faster than fresh donuts in the break-room.

The More You Control It, the More You are Liable

Under agency law, employers are responsible for everything employees do when they are in the scope of their employment. The employer can also become responsible when the employee is not working if the employer has control over the activity, it benefits the employer in some way, or other people have a good reason to believe that the employee was acting for the employer.  This last bit – not wanting people to mistakenly think that employees’ personal social media accounts are really the employer’s social media accounts is why employers make employees put those stupid disclaimers in their bios: “tweets are my own.”

Disclaimers: Disclaimers are not effective because if the employer really is controlling things, then they are going to be liable even if there is a disclaimer. Requiring disclaimers actually bolsters the argument that the employer is liable. This is  because the employer is controlling the employees’ personal accounts when they don’t have to. And pretty much everybody understands the difference between a personal social media account and a company one anyway.

Also the NLRB just said that requiring disclaimers is an interference with employees protected concerted activity. See Eric Meyer’s discussion of the decision here.

So don’t require disclaimers.

Wage issues: If you are paying someone to monitor employee social media use, even while they are off-duty and you think that their social media use is important enough to regulate and control, there is also an argument that you should be paying them. The more employers tell employees what to say on social media and how to say it, the more likely that the employer is going to be responsible for what goes on there even if employees are off the clock.

Liability for Defamation: Then, after the employer has issued policies, memos, and edicts to control, regulate, and dictate employees on social media, someone says something mean, ugly and untrue, or discloses private information about a third party. There is a lawsuit for defamation or breach of privacy rights. Employers might avoid getting sued entirely, or at least get out on summary judgment, if they can show that they were completely hands-off about what employees do on social media on their personal accounts. Otherwise, employers get to pay employment lawyers lots of money and the CEO gets to sit through weeks of trial when there is a question of fact about whether or not the employee’s tweet was in the scope of their employment because the employer monitored, required disclaimers, and had detailed involvement in what was said and not said on employee personal accounts.

Don’t Discipline for Off-duty Conduct

California, New York, and other states have laws that protect employees from being disciplined for off-duty conduct unless there is a clear connection to the employer and the employer is actually harmed by the conduct.

In addition, privacy rights can preclude employer’s from legally monitoring employees while they are off-duty and on their own equipment and social media accounts. For more information on privacy at work, see my Work and Privacy Series on monitoring, what’s personal, and privacy rights .

Employers would be free to monitor accounts on public sites like Twitter, or anything else that would be accessible online to anyone using a regular internet browser. But it doesn’t solve improper disclosures, and has the potential to cause far more harm than it could ever save.

Bottom line: Lose the disclaimers, drivel and drama. Figure out what you need to protect, teach people what that is, why it is important and not to talk about it. Then stay the hell out of employee personal social media accounts.

graphic for The 2018 Index of Predictive Tools in HRTech: The Emergence of Intelligent Software


 
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