Social Media: The Rules of the Online Game, Part I

Lynam & Associates is again happy to announce it was recently published in Plumbing Systems & Design magazine as general counsel to the American Society of Plumbing Engineers.  This, the firm’s fifth article for the magazine and Part I of a two-part series, addresses the proliferation of online social media and provides guidelines to be applied in the workplace from the employer’s persective.

From The General Counsel’s Desk:


The Rules of the Online Game – Part I

By: David J. Lynam

Lynam & Associates, Chicagoand Barrington, Illinois

            Employers and workers alike know that “social media” has become a buzzword used to encompass everything from marketing strategies to what employees are wasting time with at work. While most people know the basics of social media, like the sites and what they can do for you, most people don’t realize that there are rules for what you post, who you post to, who you search and what you can control.

Although social media interactions mostly take place in the online world, there can be very real benefits and consequences for any employer, including claims of defamation and/or discrimination based on the business’s use of these sites.  In addition to employers and business owners, employees can face embarrassment, discipline, and even termination for doing the wrong thing on a social network.  For example, it was just reported that Apple, Inc. – which has strict rules regarding online comments by its employees – fired a store employee for making unflattering comments about Apple on his Facebook page.

This two-part series will examine the benefits and the rules for social media, including Facebook, Twitter, and online review sites. In this Part I, we will discuss the benefits and rules from the employer and business owner standpoint, describing what you need to know about online marketing, interactions with employees, and online reviews. Part II will view the benefits and procedures from an employee’s perspective.

Marketing and Benefits

Despite the rules that apply, using social media is an integral part of doing business today: employees and clients – both current and potential alike – look to your online presence just as they do your in-person presence. Company profiles on Twitter, Facebook, and LinkedIn can be a resource for potential clients and potential employees, as well as a useful forum for you interact with each of these groups.  However, as in print media, any marketing and information provided via online social media must be truthful and not misleading. Most social media sites have their own policies and rules regarding promotions and content that you may post, which you should always review before utilizing the sites. Additionally, you should monitor the privacy functions of these sites and determine whether you want employees, clients, and/or the general public all viewing the same content, or whether you would like to specify what content specific groups should be allowed to access.

Are you “friends” with your employees?                  

Employers must know the rules before utilizing any benefits of social media. As little as five years ago, employers may have safely assumed that social networking was only an issue with employees under the age of 25. However, Pew Research Center has reported that the use of social networking sites like Facebook and Twitter has increased 100% in last year for those 65 and older, meaning 1 in 4 of that age group now have an account. These sites currently account for 25% of all time spent online in theU.S., making social networking the number one web activity. As such, social media is no longer something that employers and business owners can ignore.

An employer may initially wish to completely control or prohibit its employees’ online comments and interactions in an effort to avoid any possible problems. However, not only is total control or prohibition implausible, the courts have also ruled it to be illegal. Just as the National Labor Relations Act prevents employers from keeping their employees from meeting outside of work to discuss working conditions, the courts have found that employees “meeting” online and talking about working conditions in any form, even in a Facebook post, is protected labor speech. As such, there are guidelines employers should follow when it comes to regulating employees online conduct.

First, there should be a written policy circulated to and signed off on by every employee. The policy should detail what is and is not acceptable social networking behavior for employees. Your business has every right to ensure your employees’ online profiles do not reflect negatively on your company. In addition, the policy should make sure that certain information – including names of your company’s customers, any protectable trade information, and/or confidential client information – is kept confidential. The policy should address the fact that the company’s anti-discrimination, anti-harassment, and confidentiality policies still apply to employees when they are online, even during after work hours. Keep in mind, though, that while some employer rights are retained, the policy cannot be so broad as to prevent any discussion of work.

Once a policy is established, employees should be given a chance to review and ask questions on what will be considered proper and what could lead to discipline.  Ideally, there should be a way for employees to report possible problematic activity and request advice as to appropriateness before posting on social media sites.

In addition to developing a written social networking policy for employees, beware of how you access your employees’ online identities. You should disclose who you are if “friending” an employee, and should never sign on to an employee’s profile, whether or not you have permission to do so. While it may be tempting to see how an employee acts when the boss is not around, courts have considered some aspects of online profiles to be private, and you may be violating an employee’s rights by accessing his or her site.

Finally, while employers are allowed to perform online research on any prospective employee before hiring, they still must follow all anti-discrimination policies and ensure that (1) the research does not violate the prospective employee’s privacy rights, (2) the research is accurate, and (3) certain protected characteristics which can be discovered on these sites, such as race, do not enter into the hiring decision.

Online Review and Rating Sites       

Employees are not the only important social networking presence.  Whether or not you actively maintain an online presence for your business, one is likely being built; a presence that is extremely important and can be viewed by any potential customers or employees.

While every business owner knows that word-of-mouth recommendations are useful for business, the new reality is that a Tweet or a Yelp review could be just as useful, if not more. The Washington Post reported a study by Michael Luca ofHarvardBusinessSchoolshowing that a rating increase of one star on Yelp (an online rating and review site) leads to a 5-9 percent increase in revenue. While restaurant or store reviews and choices may be one thing, the use of online reviews in professional fields has also increased as people grow more comfortable in trusting online reviews and ratings.

An employer or business owner should not only regularly review what is being said in online reviews, but should know that there are some ways to control what is being said – and also some ways to get in trouble in this area. As an employer or business owner, you can use tools such as Google Alerts to keep up with what is being said about your company online and to use existing reviews – both positive and negative – to assess how your company is doing.

If you see that your company’s status is either not what you would like to see or is non-existent, there are some ways to encourage customers to provide reviews. The best course of action is to kindly ask your satisfied clients to take the time to write a review. However, be aware that there are potential legal pitfalls to asking people to post favorable reviews for your business. The Federal Trade Commission has stated that as with any product endorsement, it must be clear if the reviewer/blogger/rater has been paid or has any connection to the company.  This means that you cannot give cash to customers to write a positive review, nor can your employees pose as customers online without disclosing their status.  These rules extend to any promotion of your products, so if you decide to tout a product of yours on an industry message board, you must disclose your affiliation with the company.

One inescapable reality of online reviews is that some are bound to be negative. If you are concerned about the number or seriousness of negative reviews of your company, most online review sites will allow you to directly respond. In addition, some review sites require some verification of truthfulness and you can demand the removal of any false statements. Our law firm has had success in obtaining the removal of negative statements on behalf of clients, which can be laborious. Otherwise, there is frequently little that can be done about truthful negative opinions other than having thick skin and ensuring that there are offsetting positive comments and reviews.


The best advice is to view your actions on social media sites just as you would any in-person interaction: if you would not rifle through a future employee’s private information in person, don’t do it online; if you would not pose as a satisfied client to lure in future clients, don’t do it online; and if an employee is allowed to make the comment while talking to co-workers outside of work, they may be able to make it online.  Working with legal counsel to develop an appropriate social networking policy and consulting legal counsel when using a new online marketing strategy will help a business utilize all that these forums have to offer, without running into an unanticipated and costly lawsuit.

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