Are you as surprised as I am when you encounter “opinions my own, not my employer’s” disclaimers on social media accounts?
Many companies still ask that employees write disclaimers into their social media profiles whether the accounts belong to the employer or they’re the personal pages of the employee. Here are 5 reasons why employers need a better way to explain who’s allowed to say what on which social media accounts.
Let’s get the disclaimer out of the way: I’m not a lawyer and even the lawyers I quote here would like you to know that this post should not be considered legal advice.
1) Disclaimers don’t protect a company and may even make a company liable
Corporate legal departments don’t like risk, and social media – with its free and easy access, instantaneous publishing, and wide scope of influence – seem like major risks. What companies are concerned about, notes corporate-practice lawyer Robert McHale, author of Navigating Social Media Legal Risks, is preventing:
- disclosure of proprietary or regulated information,
- display of photographs that give away trade secrets or invade privacy,
- erroneous or negative statements about the brand, the company, its leaders, and competitors, or
- inappropriate, discriminatory or harassing comments about company employees, vendors or customers.
But a disclaimer won’t stop risky (or risqué) information and images from getting out if someone is bent on sharing or doesn’t know any better.
In this excellent post on the HR Examiner site, employment and labor law attorney Heather Bussing writes, “understand this fundamental principle – the more you control [employee accounts and employee behavior on social media], the more you will be legally responsible for everything that happens.”
In other words, it’s wiser to back off when it comes to personal Twitter feeds and Facebook or Pinterest profiles. When employers leave personal accounts to employee discretion, “then the company generally will not be liable for things said and done in employees’ personal accounts,” Bussing explains. “This is because the employees are not acting in the course of their employment, and the employer is not controlling or implicitly approving the actions of its employees” outside of work.
2) Disclaimers create their own legal risks
There are clear and established laws regarding employee rights when it comes to privacy/monitoring, being a member of a protected group, speech that discusses wages and working conditions, and whistleblowing. Disclaimers, social media policies and disciplining employees for social media activity must not conflict with these laws.
Bussing notes that having employees write disclaimers on their private accounts requires a monitoring process by the employer to ensure consistency of enforcement if employees are caught violating company policy. And monitoring or, worse, accessing an employee’s personal social account – even when that account is sometimes used for company business or promotion – “carries significant risk,” writes McHale. Under federal and state laws, employees are entitled to a reasonable expectation of privacy away from work.
McHale recommends absolute clarity instead: “Companies should adopt social media policies that squarely address issues such as the distinction between personal and business social media accounts, who owns the accounts, and who is authorized to speak on [the company’s] social media sites.”
As for what employees are saying on social media sites, Bussing warns that employers risk “liability for retaliation under discrimination laws” when they discipline employees for using social media in a way that relates to a protected status, such as an “employee’s race, religion, marital status, national origin, gender, pregnancy, age, disability” and quite a few other categories, as well.
Similarly, the National Labor Relations Act “prohibits employers from disciplining employees for discussing working conditions (such as wages, benefits, and the like), regardless of whether or not the employee is a member of a labor union,” notes McHale.
Bottom line: Never assume a disclaimer or policy gives a company the right to monitor, reprimand or fire an employee over their social media activities – whether private accounts or those owned by the business.
3) Disclaimers don’t add clarity around account ownership
Does the company own an account? Does the employee? And who has dibs on followers? Disclaimers only make this kind of traffic control more confusing, and the last thing a brand or company should do is confuse the people it wants to engage.
Forget disclaimers. Personal social media profiles belong to employees. Companies need to own their social accounts, creating specific ones for each employee officially tasked with using social media on behalf of the company. Account names should be clear and include both company or brand name and the name or initials of the employee. Customer service departments use this approach to provide customized responses and track issues.
National Public Radio does the same for its anchors. They aren’t their own brands – Scott Simon, Audie Cornish – they’re @nprscottsimon and @nprAudie. This is a smart move that acknowledges the credibility the correspondents bring to NPR and vice versa. It also speaks to the very real fact that people change jobs and retire. When they do, their NPR Twitter accounts will close, and fans will choose to follow them to new accounts, follow their NPR replacements, or both.
4) Disclaimers hurt the brand
Does requiring every employee with a social media profile to include a disclaimer match your brand’s personality or your company’s mission?
“To the contrary,” Bussing says, “it just looks like the company is trying to control what gets said.”
Pre-emptively censoring employees doesn’t much impress fans and followers; it dampens any sense of transparency and honesty in company communications. It sends exactly the wrong message about your company and what it might hope to do in the social arena.
5) Disclaimers are based on fear, not strength
What are companies afraid of? Yes, companies monitor employee online activity, including the websites they visit and the emails they send. This usually gets a brief mention during orientation, when a new recruit is overwhelmed with information.
While Bussing advises against social media policies – because “if you are directing the conduct of employees in social media, the company will be liable for everything that is said” – others, like McHale and Christopher Barger, author of The Social Media Strategist, recommend comprehensive and ongoing training for employees.
Rather than a one-time, check-the-box training, Barger advocates “teaching the organization to fish,” a three-level education program that:
- covers the legal and technical basics,
- provides additional resources for learning and networking,
- shares the company’s purpose for being on social media, its goals, strategies and marketing and customer service approaches,
- offers an opportunity to participate in company social media, and
- encourages taking what’s learned and dispersing it throughout the company.
Fear is never a good starting point for technology or the activities employees use technology for. And disclaimers don’t substitute for clear, fair policies and a solid education program to support employees in their social media practices.
Do you use a social media disclaimer? What do you think they offer companies and/or employees? Will they become more common or disappear as social media evolves?