Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Social media is so powerful that some argue Russian manipulation of it changed the result of a U.S. presidential election. In the employment context, social media is not quite that powerful, but employment-context social media is pervasive, reaching interactions between employers and employees, interactions among co-workers, and staff interactions with the outside world.
The bright side to employment-context social media—both the big open platforms and internal employee-chat functions on company intranets—is that it facilitates workplace communications. Used correctly, social media can keep staff engaged, connected and informed.
But management inevitably sees a more complex dimension to employment-context social media. The old expression "never pick a fight with someone who buys ink by the barrel" became obsolete when newspapers lost their monopoly on communicating with the public. The new, inverse expression is "everyone with a cell phone is a reporter." Today, social media empowers everyone from the president of the United States down to rank-and-file laborers to bypass regular news outlets and broadcast opinions, photos and re-tweets directly to targeted groups, be they a given company's workforce or the entire online "twittersphere."
As an example, when America's former first lady Barbara Bush died, a California English professor on a semester-long sabbatical from her university tweeted that "Bush was [an]…amazing racist who…raised a war criminal. I'm happy the witch is dead. can't [sic] wait for the rest of her family to fall to their demise the way 1.5 million iraqis [sic] have," and added that she was dancing "happily on the grave of someone I despise. It's SO FUN." As the inevitable "whirlwind of anger kicked up," the Los Angeles Times (April 19, 2019) reported that the professor "taunted her critics, bragging about her $100,000 salary as a tenured professor…declar[ing]: 'I will never be fired.'" At a news conference in response, her university employer" call[ed] the issue a personnel matter," announced "the university was beginning a review of [these] tweets" that "would involve the university system's lawyers [and] union representatives," and asked: "Does tenure mean that you, technically, cannot be fired? The answer to that is no."
This illustrates that employers have a keen interest in wresting some measure of control over employee social media postings that might implicate, even if just by association, the business, the workforce or the brand. No one knows when the next worker with an agenda or just a poorly-worded opinion will "go viral" with a post linking the company to controversial political positions, criticizing the business, taunting a supervisor, harassing a subordinate, spreading rumors or lies about the brand, disparaging company products, launching a union organizing drive, leaking trade secrets—or haplessly touting company products in a way that violates advertising laws.
A domestic employer in some local country facing these concerns can try to control workers' social media postings complying with local domestic law. That can be a challenge, because most every legal system respects workers' off-duty, off-premises "free speech" broadcast on tech devices they themselves own. And so crafting, launching, implementing and enforcing a social media policy in just one country can be tough. But for a multinational employer, the legal compliance issue gets a lot tougher, because the challenge proliferates across all jurisdictions in play.
Here, we address how a multinational headquarters can surmount cross-border legal hurdles and craft a viable and enforceable global social media policy. To explain how a multinational can do that, we answer five questions:
- Is a single global social media policy viable—or are separate, aligned local policies necessary?
- Should a global social media policy account for local restrictions under domestic American labor law?
- How can a multinational control workers' off-duty, off-premises "free speech" on devices they themselves own?
- Which topics should a multinational employer account for in a global social media policy?
- How, logistically, does a multinational launch an enforceable global social media policy across overseas workforces?
Click here to read the full Littler Report.