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How Do I Set up a Social Media Policy for My Business?

Today, we discuss how a business can protect itself from slanderous website posts. Regardless of how you feel about social networking websites, we have all heard about the unfortunate stories where an employee gets fired because of something they posted on one of these widely used, and viewed, sites.  It happened recently to a local teacher/school administrator. As a business owner, firing somebody can lead to unwanted legal action.  Employees who feel that they have been wrongfully fired can pursue those claims in a court of law.  But, as a business owner, you main concern is to ensure that you have a Use of Social Media Policy, that it is enforceable and not unconstitutional, and will protect your business from negative press or rumor.

First, we discuss the two types of employees your business may have. Most employees are classified as “at-will”. When you hire an at-will employee, there is no written contract in such an employment. Most importantly, either party can terminate the employment at will.  Several exceptions do exist, especially if unlawful discrimination is involved.  However, for your purposes we do not need to worry about the exceptions, except for one that we will discuss later. The other type of employment is one formed under an “employment contract”. This is usually referred to as a “contract of service,” but not to be confused with a “contract for services.” An employer and employee sign a contract that states specific conditions of the employment that both sides have to fulfill in order to have a successful relationship. It defines the rights and responsibilities of the employer and employee. Termination of a ‘contract’ employee is a lot more difficult, especially if the reason you want to terminate the employee is not part of the contract.

Now let us discuss the route that should be taken to ensure that you can legally enforce your Social Media Policy and a termination based on a breach of that policy will be legal justified in a court of law.  Let us first look at the ‘at-will’ employee/employer relationship.

1)     Since the relationship is ‘at will’ and termination can happen at any time for almost any reason, very little justification needs to be given for the termination.

2)     However, it is better to have as much justification for the termination as you can to ensure that you do not leave anything to chance.

3)     If you have a social media policy or are thinking about implementing one it is important that you provide your employees with notice of it and a copy.

4)     If you can, hold an employee / staff meeting outlining the policy. If logistics are a problem in your office, make sure every employee receives a copy of the policy and has an opportunity to review it.

5)     Have your employees sign a statement that they have received, read and understand the social media policy. Make it clear that the policy goes into effect from that date forward and will carry consequences if violated.

6)     Now lets talk about the termination exception to the ‘at-will’ employment that might affect you in this situation. It is important to follow your business’ policy on termination. If you do not do so, the employee might have a valid claim for wrongful termination.  This is why it is important that they acknowledge their understanding and agreement to the social media policy.

7)     Always contact a lawyer when you have any doubt whatsoever about the legality of an employee’s termination. It could save you a lot of money and aggravation in the long run.

For an employee who you have an employment contract with, it is a little bit harder to implement a social media policy during their course of their employment. You may want to include in the original employment contract that future business-wide policies shall be complied with.  Below are some points that you may find useful in dealing with contract employees and your new social media policy.

1)     If a social media policy has been implemented after entering into an employment contract with an employee, but before it ends, he or she may be exempt from the new policy.

2)     Once the original employment contract is executed, modifications, like a new employee policy, can be difficult to implement.

3)     Have a lawyer look over your employment contract. Hopefully the contract includes a provision that will allow you to add and implement the social media policy, and hold the employee to it.

4)     If the contract does not have any flexible provisions, there are two courses of action you can take.

Wait for the contract to expire and before re-signing a new contract. Then have a lawyer include the social media policy directly into the new employment contract.

Enter into a separate contract with the employee that makes them bound by the social media policy. You would need to extend their employment term, increase compensation or provide some other ‘consideration’ to make this binding.

5)     Unless directed by your lawyer, never attempt to fire an employee with an employment contract even if he/she refuses to abide by your social media policy. If you do, you may not only violate employment law but you might also breach the original employment contract.  Such litigation is expensive and will unnecessarily consume business resources.

Instituting a social media policy in a business can be a very useful tool in maintaining the positive image and good will of your company. However it is very important to be careful about the implementation and enforcement of such a policy on your employees. The Jacobs Law LLC is happy to help you and your business with these matters. Whether it is a single termination of an ‘at-will’ employee or the drafting and implementation of a social media policy into your business, we can help you achieve the results you want in your small to medium-sized business. Please do not hesitate to call an attorney at The Jacobs Law, LLC with any questions or concerns on the subject of social media policies.

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