The Perils of Social Media

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We all know that there are regulatory issues specific to registered investment advisers’ use of social media. This article from the Wall Street Journal shows that awareness of your employees use of social media should not be limited to regulatory concerns:

A Little ‘Like’ Can Mean Big Trouble


Workers of America, be careful what you “like” and post on Facebook.

A U.S. district court in Virginia recently found that a sheriff’s office employee “liking” a Facebook page was “insufficient speech to merit constitutional protection.”

Several former employees claim they were let go after the sheriff found out about their support for a political rival through a Facebook “like,” among other actions.

A simple click of Facebook’s “like” button can also set in motion a surprising—and potentially negative—chain of events, as seen in the case of Peter TerVeer, a former Library of Congress employee.

According to his attorney, Mr. TerVeer endured harassment, discrimination and a hostile work environment after his former superior found out that Mr. TerVeer “liked” a group that supports gays and lesbians.

These recent cases highlight an important point: You may face repercussions at work for your behavior on sites such as Facebook. With Facebook users generating billions of “likes” and comments every day, there’s plenty of potential for workplace problems.

While some employers monitor social-media use, in many cases Facebook “friends” and co-workers alert management about posts. Philip Gordon, an employment lawyer in Denver, cites one situation in which an employee photographed another whose underwear was showing, and then posted the picture on Facebook.

“One of the other employees was offended and reported it to human resources,” Mr. Gordon says.

Some states protect employees from adverse actions in response to various forms of lawful, off-duty conduct. In the workplace context, the First Amendment generally applies only to public-sector workers.

Meanwhile, the National Labor Relations Act protects workers at most private-sector employers who discuss employment terms and conditions with co-workers, among other actions.

A growing number of companies are looking into creating social-media policies, says Gerald Maatman Jr., an employment lawyer in Chicago and New York. For employers, content and productivity are the main issues, he says.

“There are lots of employers that are thinking about amending employee handbooks and termination protocols because now more and more employees are on Facebook at lunchtime–it’s water cooler conversation like never before,” Mr. Maatman says.

Individual cases can be complicated, and workers aren’t always protected. In one case, a respiratory therapist was fired from a children’s hospital after posting on Facebook about a co-worker who was “driving her nuts” by sucking his teeth, according to a review by the National Labor Relations Board, a federal agency focused on workplace rights.

She also wrote about her plans to “beat him with a ventilator.” The NLRB found that the therapist’s posts weren’t protected because she was “merely complaining” and not suggesting that her employer take any action, among other issues.

That case contrasts with one in which a former administrative assistant was fired after complaining on Facebook about being reprimanded for her involvement in co-workers’ work-related problems. The NLRB found that her activity was protected.

Because of the time and expense involved, many employers prefer not to police social-networking sites, and investigate only when problems emerge, according to experts. Still, it’s safe to say the boss isn’t going to be happy with a worker who uses Facebook to post invective-strewn rants, or to reveal proprietary, confidential or embarrassing information.

Lawrence Lorber, a Washington lawyer who represents employers, says a client recently dealt with an employee who posted on Facebook about an affair between a colleague and a supervisor. The company admonished the posting employee, without firing the employee, and created a social-media policy.

Companies, says Mr. Lorber, “are concerned about maintaining decorum in the workplace or preventing people from using social media in a way that is derogatory. Social media is speech with a pretty big megaphone.”

Eric Jackson, an employment lawyer in McLean, Va., says one of his clients in the health-care industry is trying to train employees to be particularly careful about avoiding posts that mention client information.

“Social media is now so endemic and so casual that people forget there are underlying privacy issues that are part of their jobs,” Mr. Jackson says.