I spend most of my time litigating cases over disputes based on something someone did or said. Often, I am asked by clients to tell them their best defense to a lawsuit. My go-to answer is always to be proactive in trying to visualize problems and take active steps to steer things in a different direction to avoid those issues before they happen. One the simplest recommendations for business owners who want to be proactive revolves around crafting an appropriate company policy or preparing a specific term in a contract. Awareness of potential consequences arising from certain conduct has an amazing impact.

One of the more difficult problems encountered by employers surround their employees’ activities on social media. Given how long social media has been a part of our lives, I am often surprised at how few employers have clear policies governing content and use on social media.

Like it or not, your employees are on social media and they are posting and liking commentary, content and even memes on multiple platforms in both personal and professional settings. Because of the latest algorithms, they are likely connected to customers, other employees, and vendors. Although posting and sharing certainly can be innocent and not harmful, as we have learned with several celebrities following a social media gaffe, online comments are seen and “cancel culture” is very real. No one wants to find out that a company representative shared a photo or made a comment that portrays the business in a negative light. Even aside from disparaging remarks, you certainly would not want employees to mistakenly reveal confidential company or client information to the public.

While companies should not look to improperly restrict their employees’ speech or personal social media platforms, a well-crafted policy or employment contract term can create appropriate guidelines and parameters on content that can help be a proactive step in limiting your company’s risk of exposure. Those policies include, for example, preventing disclosure of confidential or proprietary information, limiting exposure to claims of harassment and discrimination, clearly identifying the source of comments as personal and not made on behalf of the employer and limiting impact to your company’s reputation and brand.

Does your company have a social media policy? If not, let RKW help you create a policy which respects employees’ freedom but makes employees aware of the potential bigger impact before they forward that meme.

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