Managing employees' social media activity

In the modern work environment, employees' use of social media can be an area of concern or tension, especially if their public comments reflect badly on the business or undermine the organisation’s brand or mission.

It’s not uncommon for employers to include social media activity in the reference-checking process before they decide to take on a new hire.

But despite the potential impact, many small business owners and managers feel as if monitoring or subsequently taking action in relation to employees’ social media usage is a grey area. What about a person’s right to freedom of expression? What is public and what is private? How can you set expectations about what will and won’t be appropriate on social media?

We went to leading employment lawyers for the latest advice on managing employees’ social media activity.

Every employment agreement should include a social media clause

How much can an employer dictate to their employees what they can and cannot say on social media? Bartlett Law’s Penelope Ryder-Lewis and Carolyn Heaton say it all begins with the employment agreement.

As the relationship between employee and employer is one of agreement (a contract of payment for service), the employer is entitled to set reasonable expectations up front in the employment agreement and related policies and codes of conduct.

“For example, employers can set express expectations around employees’ social media activity and make the consequences for failing to adhere to its policies and to those expectations clear,” say the employment lawyers.

The employment agreement can give examples of social media behaviour - for instance, which might cause damage to the employer’s reputation, or which might cause it to be linked to derogatory, racist or other offensive comments.

If the employee doesn’t keep to the expectations laid out in the employment agreement, then employers may be able to take disciplinary action, up to and including dismissal.

MyHR chief evangelist, Sylvie Thrush Marsh, says it’s generally uncommon for small employers to have these policies or clauses in their employment agreements. But it’s easy to fix. MyHR’s standard employment agreements have a clause which covers social media use, and the consequences if the employee’s behaviour is disparaging or inappropriate in relation to their employer.

Staff should review the employment agreement from time to time to make sure they clearly understand their obligations, says Thrush Marsh.

When social media activity reflects on the employer

An employee has an obligation not to bring their employer into disrepute or to have an adverse impact on customer relations, explain Bartlett Law’s Ryder-Lewis and Heaton.

In one case, a couple of employees were arguing with each other and using offensive language on Facebook. When the employer went to take action against them, one of the employees argued that the exchange on Facebook was outside “the province of her employer.” 

The Employment Relations Authority didn’t support this argument. It said that, in the future, as more of these instances came before the courts, comments made out of work on social media platforms could be the legitimate subject of an employer’s inquiry.

“This is my personal opinion and doesn’t reflect that of my employer”

It’s common for people who write a rant on LinkedIn or elsewhere to think they’re covering themselves by saying: “This is my personal opinion and doesn’t reflect that of my employer” but this may not be enough.

Depending on the status and the role of the person making the comments, and the nature of them, the publication of a post may also bring the employer into disrepute, say the two employment lawyers.

For example, some medical professionals got into trouble for posting their anti-vaccination posts on Facebook, and their district health board employers successfully argued that the comments brought the posters’ employers into disrepute.

“Context is critical,” say Ryder-Lewis and Heaton. Whether or not an employee’s actions on social media are sufficiently connected to their employment will in every case need careful consideration of the nature of the actions and their potential impacts, as well as the nature of the employee’s role.

This may be particularly relevant where the employee’s organisation performs a public function or provides specific services, they add.

Sylvie Thrush Marsh says that online, and particularly on LinkedIn, it’s easy to see who someone’s employer is, so the distance between a person’s private behaviour and beliefs, and the perception of that person as a representative of their employer, is much narrower.

“What someone does for a job and who their employer is matters a lot when deciding, ‘is this appropriate or inappropriate?’,” she says.

“For example, if a receptionist believes that the moon landings were faked and that aliens are real, it isn't relevant to their job so the employer should leave this alone,” says Thrush Marsh.

“But if the person is a science teacher and is posting about these beliefs, then that’s of concern to their employer and the school community who are trusting them to teach scientific principles and information to students. The employer will likely have some recourse here.”

Dealing constructively with customer complaints

Some ugly conversations can happen online between well-meaning employees and dissatisfied customers. 

BuckettLaw principal and senior employment lawyer, Barbara Buckett, says company policies should provide clear guidelines on how to respond to customer complaints in a constructive manner, so you can avoid angry exchanges on social media.

Employers can send the message internally that comments made on social media are not like chats around the water cooler, or conversations at a bar - they’re etched in print for forever and a day.

“A good practice is to think whether you would show the post to your grandmother. If the answer is ‘no’, then think first before writing and posting it,” Buckett advises.

Lawyers will often work with PR consultants on creating social media policy and internal communications.

Any business with a social media presence should consider a policy that governs how they will respond to public complaints as well as a company brand (or “tone of voice”) document to use when crafting those messages, says Fiona Fraser, founder of Contentment PR & Communications, which advises many small businesses on reputation and PR management.

Having a response template ready means that whoever is on social media duty that day, knows the guts of what could be said in response to the complaint, she advises.

Communication is key, say PR experts

Frederika Walls, senior partner of New Romans NZ, recommends once you define what constitutes offensive content and the potential consequences for violations, you need to go through the policy with your employees to ensure they understand it.

A lot of companies want their employees to advocate for them, and sharing assets, images or approved content can be a good way to do that. A policy that guides the team on social media use helps define what employees can share if they want to.

“And while it’s crucial to set boundaries, you still want employees to be themselves online within those boundaries,” she says.

It’s a changing social media environment

Anyone active on social media can tell you the tone of the platforms is always changing, so it’s important to keep having conversations with your people about social media guidelines.

Dwayne Alexander, Global Practice Leader at Alexander PR, acknowledges that the online terrain is shifting and this is causing some challenges for employers. For instance, people who were vocal on Twitter or X are now moving their conversation to LinkedIn.

“LinkedIn has undergone a transformation. It has evolved from simply hosting résumés to becoming a networking hub, a content sharing platform, and now a space where influencer status can be attained,” he says.

The LinkedIn algorithm increasingly prioritises certain types of content, including more controversial statements and emotional sharing, he adds.

Sylvie Thrush Marsh says MyHR’s standard social media clause specifically calls out LinkedIn as a social platform where the employee must behave respectfully and appropriately.

“Context is key here,” she explains. “There’s usually a difference between, ‘this is something that I think is interesting and want to share’ and ‘this comment disparages my employer’.”

In most cases employees can share all kinds of comments on LinkedIn or elsewhere if it’s not directly connected to their employer or employment.

“Social media is like a town square, where other people can see and hear you, just like in real life,” she warns.

“Controversial” isn’t always “disparaging”

Of course some of those active on social media like LinkedIn, who have a lot of corporate and life experience, make the world more interesting with their “curly” thoughts, says Lou Draper from Draper Cormack PR.

“Toeing the line isn’t always the way to go. If more of us were less ‘Yes sir’ and more authentic to who we are in business life, our businesses might be better off,“ she suggests.

Take a moment if a staff member has a rant and support your people as much as you can. “For a small business like us, we stand by our people,” says Draper.

“We all get outraged about things. It may be that the person is a bad hire, or needs support or counselling. They could be suffering from illness, there could be a whole lot of stuff going on.”

And if a customer really has a problem with your company after something has been expressed, you have to ask, do you want them as a client?

Draper’s business was courting a company for a period of time, but when they said they didn’t like her business partner, David Cormack’s column in the NZ Herald because it was too left wing, and they wouldn’t work with the PR company unless he stopped the column, that sent a message she wasn’t comfortable with. She told them, “We can’t work with you, we’re not for you.“ It goes both ways.

What to do when things go wrong

As with all challenges or threats to your business, managing any problematic social media use by employees will take leadership.

If someone is saying something discordant with the values of the company or society, as an employer you have to be strong, says Dwayne Alexander. Act quickly to address the social media use, either as a poor performance or misconduct issue.

“The more you let it run, the worse it gets. You have to nip it in the bud,” he says.

Frederika Walls recommends acknowledging the issue, stating the company’s position against the offensive content, and then outlining any agreed action you will take.

“Things can escalate quickly especially on social media channels so you want to act, but make sure to balance this with a considered response,” she says.

“The main thing for both employers and employees (or contractors) to always bear in mind is that social media IS media. You might feel like it’s your own little corner of the internet to have your voice heard, but it’s a broadcast platform like any other.”