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Can You Forbid Employees from Discussing a Crisis on Social Media?

18 Mar

forbidToday’s Q&A Monday answers reader Charlie’s question:

“During an incident can you forbid your staff to use social media to comment on the incident, even if it is their own twitter or Facebook and they are only open to their friends?”

First, let me begin by saying that I’m not a fan of the word “forbid”. However, during a crisis, it’s extremely important that your entire staff understands:

  • What is going on
  • What is expected of them, including what questions they’re permitted to answer, and where to send inquiries that they are not permitted to answer

This is why crisis training is so important pre-crisis, as well as why an internal communications platform for crisis management is so highly recommended.

During a crisis, the last thing you want to have to worry about, on top of everything else that is already stressing you out, is who within your team may or may not be discussing private details that have not yet been made public – even if only to their own friends and family. This is how rumors begin and such “leakage” will not help you regain control of the situation any faster.

The only way to prevent such errors from occurring, is not by forbidding the use of social media, but by training your staff pre-crisis and by communicating with them during the crisis. As Jonathan Bernstein of Bernstein Crisis Management says: “Every employee is a public relations representative and crisis manager for your organization, whether you want them to be or not.” It’s important that you realize this and prepare for it accordingly.

UPDATE: Sara Hawkins, attorney and author of the excellent Blog Law Series, made a very interesting point in the comments section of this blog post. Sara and her legal expertise, says:

“Such an important consideration. Often employees want to vent and they may do it online or through email or text with people outside the company. Also, some employees want to help and feel that using their private account to post responses/replies to other commenters will mean that the company won’t have to worry about it.

Unfortunately, for both the employee and the company there may be significant legal consequences. An employee who shares confidential information may put their job at risk or make the matter worse for the company. An employee who doesn’t agree with the unified corporate message may undermine the legal steps the company must take to preserve their legal position if the situation is one that may go to court/arbitration.

It’s these types of reasons that make it even more important for a crisis management plan to have an internal communication component.”

Other articles that may interest you on this subject:

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15 Responses to “Can You Forbid Employees from Discussing a Crisis on Social Media?”

  1. Sara Hawkins March 18, 2013 at 12:27 pm #

    Such an important consideration, Melissa. Often employees want to vent and they may do it online or through email or text with people outside the company. Also, some employees want to help and feel that using their private account to post responses/replies to other commenters will mean that the company won't have to worry about it.

    Unfortunately, for both the employee and the company there may be significant legal consequences. An employee who shares confidential information may put their job at risk or make the matter worse for the company. An employee who doesn't agree with the unified corporate message may undermine the legal steps the company must take to preserve their legal position if the situation is one that may go to court/arbitration.

    It's these types of reasons that make it even more important for a crisis management plan to have an internal communication component.

    • Melissa Agnes March 18, 2013 at 12:41 pm #

      Thank you Sara! Such an important angle to realize.

      I've included this excellent addition to the post as an "update". Thanks so much for taking the time to add such value!

      Melissa

  2. Brett March 18, 2013 at 12:38 pm #

    Hi Melissa,

    Great post… like you, I think that trying to “forbid” employees from doing anything is quite problematic.

    I think its normal and accepted that a company will designate a spokesperson during a crisis who will make official statements on behalf of the company. But it is important to recognize that there will be chatter about the incident. So, even if an organization tries to forbid employees from commenting online, there’s nothing to say that people won’t tell their friends and family (who may post online), or, if they really feel the need to have their voices heard, set up a fake account to post revealing/potentially damaging information. Even telling employees they can’t discuss the issue may serve to inflame the crisis since people will start talking about a “gag order” being in place, leading others to believe the company/organization has something to hide.

    Much better, as you say, to empower your staff through training and communication than attempt to restrict them.

  3. JoelinPDX March 22, 2013 at 10:16 am #

    I want to point out one good aspect (at least for the company) in having employees post on their social media pages.

    By monitoring these pages, managers can quickly find employees who don't really like their jobs and would be better off working somewhere else.. Employees who post negative remarks should be counseled and it should be made clear that their job is in jeopardy. This is especially true where "Hire at Will" laws rule.

    Conversely, employees with good attitudes should be no problem. Pre-crisis training would point out that it's important, for many different reasons, that any rebuttal or comment come from the company. Employees with positive attitudes would certainly understand and follow these rules.

    • Melissa Agnes March 23, 2013 at 11:22 pm #

      While it's always good to know and be aware, it's also dangerous grounds to threaten an employee's job for social media postings. More and more laws are being formed to protect the employee from such threats against their free speech.

      The best way to go about it is to empower your employees with the knowledge, tools and understandings of the importance of it all and then to trust them to be responsible and professional adults.

  4. JoelinPDX March 25, 2013 at 12:26 pm #

    Yes, it's probably true that our nanny governments are getting too involved and passing laws allowing any and all comment on social websites. But I don't see what the difference is between someone dissing the company online or around the water cooler. Either one is evidence that an employee isn't happy working for the company. Yet, trash talking around the water cooler has always been grounds for dismissal.

    • Melissa Agnes March 25, 2013 at 1:18 pm #

      I'm actually a firm believer in an individual's right to free speech and disagree with a company who bullies their employees into offering up passwords to private accounts, etc. However, I'm also a firm believer in creating guidelines and policies that respect the above while protecting the company and letting everybody know what is expected of them.

      As for the "water cooler talk" the best thing both parties can do is their best to treat each other respectfully. Employers should provide a good working environment for employees. When this is done, they have very little to directly worry about.

  5. JoelinPDX March 25, 2013 at 1:36 pm #

    It just seems to me that someone who is going to gripe about their employer, either online or at the water cooler, maybe needs to rethink their employment. And as employers, we don't need people who think they know better how to run our companies. Maybe they do, but then they aren't the ones signing the checks.

    Understand, I'm not talking about minor gripes but if you don't like working for me so much that you have a need to express your grievances publicly, then I have two words for you, "Get out!"

  6. Nikki April 3, 2013 at 4:06 pm #

    Absolutely. While a company will never full able to control private conversations or gossip there should be policy in place stating this is not only unprofessional, but a terminatable offense. It won't completely eliminate the offense but it will sure curb it from being blatant and reduce the potential destruction that can follow.

  7. Steven Spenser April 9, 2013 at 2:37 am #

    To answer your question: Sure you can, and doing so is quite simple.

    Employees have very little protection for "free speech" while at work.

    Any employer can mandate that any and all, or simply only some (or particular), employees refrain from using social media *while at work.*

    Excepting the recent Supreme Court decision about discussing job conditions (now protected speech), anything any employee posts on social media while at work using company property (computers and Internet connection) can be legally restricted by the employer.

    Any social-media account established by an employee while at work and using company property to open the account legally belongs to the employer. The employer is entitled to demand the account passwords, and can legally shut down such accounts during any crisis to ensure that only designated spokespeople are communicating on behalf of the company.

    If the employer has given a smartphone, tablet or any other communication device to any employee for business use, the employer has every right to gather up all such devices during a crisis.

    Any company's IT department should easily be able to pull the Internet connection for various employee's computers.

    • Steven Spenser April 26, 2013 at 4:46 am #

      Judith wrote: "In other words, Section 7 of the National Labor Relations Board Act (1935) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment."

      Steven replies:

      I already made that point in my comment when I stated that "Excepting the recent…decision about discussing job conditions (now protected speech)…" Online comments about work were extended protected coverage.

  8. Steven Spenser April 9, 2013 at 2:39 am #

    Nothing can control what employees do at home on their own social-media accounts. While explaining why the company should speak with only a single voice and requesting that employees stay out of the issue are desirable goals and actions, someone is always going to insert themselves into the stream even when they know that doing so violates company policy.

    Training and indoctrination are essential, as Melissa points out, but monitoring what employees are saying about the company/brand and customers has always been critical. Make sure that employees know that management is always looking to identify policy violators, and that their continued employment depends on conforming/adhering to policy, procedures and regulations. The staffers who post regardless wouldn’t have been inhibited by anything the company mandated anyway. The reason to promulgate such a policy is to hold the other 99% in check. That will be easier to do if you periodically fire and prosecute as many violators as you can identify.

    Carrots are always more effective when the mule knows the stick may be used randomly and for no reason.

    • Melissa Agnes April 25, 2013 at 2:00 pm #

      Hi Steven, I sent your comment off to my friend, Judith Delaney, who is an attorney who specializes in social media law and online privacy issues. She is also a frequent contributor to my blog. After reading your two comments above, Judith was kind enough to send me the below as a response, that I thought you might be very interested in:

      “Hi Steven – I found the information you shared on your posts interesting and certainly some value in what you shared. However, I did want to take a moment to clarify some aspects of your posts.

      First, it is not the case that “Employees have very little protection for “free speech” at work. For example, per the National Labor Relations Board General Counsel’s comment re Section 7 of the National Labor Relations Act, an employer‘s social media policy would be in violation if it would “reasonably tend to chill employees in their exercise of their Section 7 rights.” In other words, Section 7 of the National Labor Relations Board Act (1935) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Therefore, the NLRB says that if you are discussing or stating your opinion about working conditions this is a “protected concerted activity” under federal law.

      As a result, the labor board’s rulings, generally tell companies that it is illegal to adopt broad social media policies – like bans on “disrespectful” comments or posts that criticize the employer – “if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.” Thus, the NRLB’s modification of the NLRA (not the Supreme Court) defined “Protected Speech” as comments concerning employees terms and conditions of employment”.

      In addition, except for the exceptions ruling by the Supreme Court I discuss below, an employer cannot “forbid” an employee’s right of free speech as such right is defined in the first amendment.

      On the other hand, the Supreme Court has ruled that speech and/or an opinion that involves incitement, false statements of fact, obscenity, child pornography, threats, as well as speech owned by others, are all completely exempt from First Amendment protection; and the NLRB has also ruled that one can lose the Protection of the NLRA for Egregious conduct during the course of otherwise Protected Speech activity, such as: posting privileged or proprietary information; posts that violate federal or state law; posting in the name of the company; posting statements about co-workers; supervisors or the employer that are vulgar, obscene, threatening, harassing, or a violation of the employer’s workplace policies against discrimination, harassment or hostility on account of age, race, religion, ethnicity, nationality, disability or other protected class statute or characteristics; and

      It is irrelevant whether the posting is on a company social media account or a personal account if such posting causes harm to one’s employer (or its employees, clients, customers, or third parties) that is in violation of the law.

      For example: In the case of JT’s Porch Saloon & Eatery (13-CA-46689) a bartender unhappy with the bar-tip policy, complained to a step-sister on his personal Facebook account. He also referred to customers as “rednecks” and said he “hoped they choke on a glass as they drive home drunk”. No other employees responded to the posting and the bartender was terminated. He then sued claiming Protected Speech.

      The NLRB ruled that the bartenders’ actions were not concerted activity or a “logical outgrowth” of a protected discussion with other employees.

      So, while your point that “nothing can control what employees do at home on their own social media accounts (or for that matter company owned social media accounts) ” is well taken from the perspective that physically that may be true, it would appear that from the perspective of the law it is not, and to that extent an employer would appear to have the right to do the things you suggest but also, as Melissa points out, has the responsibility to incorporate a crisis management plan that is clear, detailed and concise as part of its social media policy and train and educate employees on what is “forbidden” and the repercussions at law, if violated.

      - Judith

      * Disclaimer:  The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter thereof.  Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or all of the content of this article.”

  9. Melissa Agnes March 18, 2013 at 12:46 pm #

    Great (and scary) points, Brett! Your addition is a great example of why its also important to monitor in a crisis. We often think of monitoring as in monitoring the "outside" chatter, but its equally important to be monitoring the "inside" chatter as well.

    Thanks for taking the time to share your thought-provoking reflections!

    Melissa

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