In Our Litigious Society, Social Media Is No Bull
By Karen Rasmussen, Member, Bluewire Advisory Board
As a fan of courtroom and legal dramas, one of my favorite television programs is “Bull” – the eponymous story of a fictional trial scientist whose firm specializes in vetting potential jurors to ensure the best outcome for the firm’s clients. The plots of different episodes often evoke real cases and actual headlines, while changing the names to protect the “innocent”.
One of the most interesting scenes in each episode is that of voir dire, the jury selection process. In the prep leading up to voir dire Bull’s team of attorneys, researchers, former FBI and Homeland Security experts and others dig into every potential juror’s background, including their social media postings.
Social media often plays a greater role when it comes to the actual trial. I find fascinating the number of times a defendant’s or plaintiff’s social media posts come out in court as part of a “gotcha” attempt to catch that party in a lie or diminish its credibility. Amazingly these people are surprised by the revelation that something they publicly posted on Facebook can come back to bite them where it hurts! It is not unusual in these episodes for the party to post something demeaning, racist or unfavorable about its own employer or company, a situation that is frightening close to real life.
Wait, what??!! Yes, it is quite possible an employee could be posting remarks about you or your company on social media that paint a less than flattering image of your organization. Such posts also could reveal what you might consider to be proprietary information that you’d prefer your competitors not know. A disgruntled employee complaining about his or her hours or income may just be letting off steam to their Facebook pals, but what image does such a post paint of your company? And if you’re going into a legal battle, do you want the other side finding and citing employees’ unflattering posts, whether directly about your company or not?
How aware are you of what your employees are posting on social media? Do you have a policy that clearly outlines what employees may and may not post about your company (their employer) on social media? Does your policy protect employees’ freedom of speech yet provide clear and reasonable guidelines? Are you confident there’s nothing posted “out there” that could be damaging to your company’s image, let alone be used against you in a legal proceeding?
An industry colleague of mine told me not long ago that a truck driver Facebook friend of hers posted something like this: “Just finished delivering a load in L.A. and I’m fried! I’m over on hours already but my dispatcher just told me I need to go pick up another load at six a.m.!” or words to that effect. Whether or not the driver is being truthful, would such a posting be something you’d want to read or have others read on one of your drivers’ social media pages? Even better, would you like to watch jurors’ faces as that post is read aloud to them in a trial setting after a crash, regardless of whether the driver involved in the crash was over hours. Such a post could raise doubts about how serious your company is about compliance and safety.
I’m Facebook friends with probably a hundred professional truck drivers I’ve met and come to know personally during my time in the industry. I confess that I’ve never seen a post quite like that one, but I am sometimes taken aback by some of the political musings of my driver acquaintances, most of whom are died-in-the-wool conservatives and proud of it. There’s nothing wrong with political beliefs but I confess that I sometimes cringe at some of these posts, and I wonder if their companies are aware of what they’re professing on Facebook.
Social media is one of the factors responsible for the blurring of the line between professional and personal lives. Some regard their Facebook page as their personal soap box where they can air all manner of grievances, call for violence against public figures, post questionable jokes and cartoons, campaign for one political candidate over another and do it all without thinking how these messages may be perceived in ways they can’t control. One click on that little “share” arrow, one screen shot, and social media posts of all types go viral in the blink of an eye.
In addition to the real-world example above, consider these ways an employee’s post could come back to hurt your company:
Posting his or her view on a controversial topic on their personal Facebook page. Employees think “It’s my personal page, so no concern, right?” Yet customers, clients, prospective employees and others outside the company may associate the individual employee with the organization, leading them to question the company’s culture and values. We see a lot of these types of posts evolving out of the 2020 election and some of them are downright radical!
Making a derogatory comment about a company’s competitor, thinking the competitor won’t trace it back to them (your employee) and subsequently to you. Employees fail to consider that there is little privacy or anonymity on social media and thus, fail to consider the risk for your company.
Posting comments and photos that give a negative impression of your employee, be it bragging about “getting hammered” in a bar with friends, posts that could be considered bullying even though they may be all in fun, using racial epithets and profanity and so on. While Facebook attempts to block the more radical posts, far too many of them not only get through the screening but end up being shared with hundreds of others on social media.
A well-written policy can provide guidelines about appropriate use of social media and outline the employer’s expectations without hampering freedom of speech. At best, it can raise awareness among your employees and help them better manage their social media use to limit your exposure to risks.
In my corporate experience, a social media policy is often delegated to the HR Department or the marketing staff. HR produces the employee handbook and other employee management materials, and marketing folks are the gurus of using social media to promote your brand, so why worry? However, ask yourself if your social media policy is being followed by your employees, along with who is monitoring what employees say on public posts. How comfortable are you that a plaintiff’s attorney wouldn’t find anything about your company that could be used against you in a legal proceeding?
This might be a good time to take a page out of Bull’s scripts and proactively examine what your employees say about your company on their social media. And if you don’t have a social media policy, now is the time to act!