Small Businesses Find Fine Line to Walk When Workers Tweet

Social media might provide a bullhorn for sharing opinions, whether from celebrities, presidents or everyday people. But Earl White knows what can happen when an employee’s social media presence becomes a business challenge.

White, co-founder and vice president of Miami-based real estate company House Heroes, LLC, was in the middle of a deal last summer when the seller mysteriously stopped taking an employee’s calls.

“I reached out myself to ask why the transaction fell apart and the client said he ‘can’t stand’ with people like us,” White says.

Turns out that this new client “had strong political opinions on one side of the aisle, and our employee felt equally strong about the other side,” White adds. After interacting with the employee via phone, the client looked him up on social media and didn’t like the political posts he’d found, costing the company tens of thousands of dollars when the deal tanked.

“We do a lot of work to build the credibility of the business on a personal level,” White says. “If we’re selling a widget, people don’t care but when you’re talking about selling us your house, the process is going to be potentially two months, three months, it’s a little bit different. You need some kind of collegial working relationship.”

“I reached out myself to ask why the transaction fell apart and the client said he ‘can’t stand’ with people like us.”

That experience prompted management to create clearer guidelines for employees who list House Heroes as their employer on social media. “If you’re going to represent yourself as an employee, you’re not going to be able to post political things on an account,” White says. Once the policy was in place and the employee saw what had happened to the deal, White told him that he would be formally reprimanded if he did it again.

With social media use high—Pew Research Center reports that around seven in ten Americans use social media—employers, especially small businesses without large human resources organizations, can struggle to understand how or what guidance to provide workers around social media.

“The best defense that you can have is to have a clearly defined social media policy that is made known to every employee when they start, that’s signed by each employee as a condition of employment,” says John Miller, a partner in Henderson, Franklin, Starnes & Holt, P.A.’s tort defense group. “It should be updated regularly to reflect changes in the National Labor Relations Act and stick to [your policy]. Document any infractions and have the employee acknowledge receipt and review of the policy.”

Often a social media policies can be discussed as part of a new hire’s onboarding or included in the company’s employee handbook.

As Rosa Hardesty, knowledge advisor for the Society for Human Resource Management, points out, “employees shouldn’t be posting things that are private company information, financial information or things like that. Expressing themselves on social media can be fine, but they’re not being a representation of an employer.” An employer social media policy might also prohibit employees from trash-talking a competitor or threatening physical violence online.

But while businesses can set guidelines, the National Labor Relations Act (NLRA) sets rules around how far those can go. Employers cannot legally restrict employees from discussing work-related concerns such as working conditions or compensation. So, while an employee venting about a boss or coworker on social media may seem like poor form, reprimanding or firing them for such behavior can be a fine line for employers to walk, especially if the employee can make the case that it was a concerted activity with other employees.

Disciplining an employee for religious speech may also get the employer into hot water, because religion is a protected class. “If the employee can prove that they were terminated because of their religion, the employee could be in some trouble,” says Miller. However, political affiliation is not a protected class, so political posts are a different story unless race is also involved (race is another protected class).

“When an employer claims to have lost business as a result of an employee’s social media post, an employer may want to consider a few things before taking any adverse action,” Hardesty says. “For example, can the organization prove the posts directly accounted for the lost business? Was there something else that occurred around the same time that may have led to the lost business?” If it’s unclear, Hardesty recommends conferring with legal counsel before taking action against an employee.

“One of the best practices I talk about a lot is ‘don’t consolidate the power to post.”

Employers may want to consider stricter guidelines for employees who use social media in an official capacity on behalf of the company, because a rogue employee with access to the company Twitter or Facebook account can do a lot of damage to a brand’s online reputation. “One of the best practices I talk about a lot is ‘don’t consolidate the power to post,’” Miller says. If one person is solely responsible for social media posts, there are no checks and balances on power. In some cases, the employer may not even know the password for their own social media accounts. That’s why multiple people should be able to monitor and post on social media and have the passwords, according to Miller.

Hardesty stresses the importance of training all employees who have access to official social media accounts. “Here are the standards for our company accounts and ensure that if employees have a concern that there’s an open-door policy [on asking questions],” she says.

Still, social media can be a positive or negative force depending on how it’s used. While the wrong social media post can damage reputations, the right ones can have the opposite effect if employees also know what they can post. “Social media can be used in a good way if they’re posting about awesome events or ‘my employer did something great,’” she says.