Social Media in the Workplace – a Balancing Act

As practicing lawyers and business people, we’re not supposed to weigh in on contentious issues; so this week I’m not going to talk about the Middle East, Mayor Ford, plastic shopping bag bans, the Argos or the Nicki Minaj and Steven Tyler twitter feud. Except that I sort of am.

Part of the Lunch and Learn we held yesterday at the firm dealt with social media in the workplace. It’s an interesting topic from a legal standpoint and one that generated a lot of conversation from clients. One area of confusion however, is the balancing of rights between freedom of expression and the privacy and reputation rights of the employer. How much restraint is reasonable and what kind of social media policy infringes on an employee’s right to free speech?

There are a lot of complexities at play. If the employer has a social media account (like ours) it’s completely reasonable for an employer not to allow an employee (like me) to use the corporate account to vent about their political beliefs or to make insensitive comments about a protected group. That reasonable limit may even extend to the employee’s personal account, depending on the extent to which they represent the company as a “public face.” The Israeli Defense Force is dealing with a bit of a PR disaster this week as pictures of their social media guru wearing blackface and calling himself Obama are being circulated on Facebook. Add that to last week’s circulation of pictures of active duty personnel posing for smiley faces on Instagram while they prepared for a possible ground campaign in the West Bank and you have an organization that probably needs to clarify its social media policy.

Inga’s advice yesterday was helpful I think, and cut through a lot of the competing rights confusion – the policy has to be reasonable and it has to deal with actual harm. If the way someone uses their social media platform of choice isn’t harming the employer in a real way, then the policy shouldn’t be otherwise restricting their behaviour. But where there is the possibility of defamation, leaking confidential information, or devaluing the employer’s brand, a good policy can be the most effective mitigation strategy around.

Scott R. Young.