This is the third of five in an article series entitled How to Create a Global Social Media Policy. It was written by international employment attorney Donald Dowling with Littler Mendelson P.C.
Part I can be read here.
Part II can be read here.
Employment laws worldwide empower management to promulgate necessary and reasonable work rules that apply on-the-job, in the workplace, or that involve employer-owned equipment. The tricky aspect to a policy reining in worker social media activities is that, to be effective, the policy must reach off-duty, off-premises “free speech” on devices workers themselves own. We mentioned, for example, the California English professor who (presumably using her own device) tweeted political opinions unflattering to Barbara Bush. Even though that professor at the time was out on a semester-long sabbatical, her employer told news media that her tweets were a “personnel matter” triggering a disciplinary “review…involv[ing employer] lawyers [and] union representatives.”
The fact that social media policies reach off-duty/off-premises conduct on worker-owned devices poses little challenge in the United States, because U.S. law under employment-at-will leaves employers largely free to discipline staff for most off-duty conduct. A century ago, a Detroit automaker famously dispatched teams of “Sociology Department” investigators to monitor factory workers’ morality off-duty in their own homes, firing the ones who did not measure up. Today’s employers are more laissez-faire, but employment-at-will still lets American management discipline workers for almost any non-discriminatory reason, including even off-duty activity. Most U.S. state statutes said to regulate discipline for “off-duty activities” actually insulate only one or two very specific off-duty activities like smoking and owning guns, leaving employers free to impose discipline for all other off-duty reasons; e.g.: 820 IL Comp. Stat. 40/9, 55/5; KY Rev. Stat. § 344.030; ME Rev. Stat. tit. 26, §§ 591, 597; MN Stat. §§ 179.01(3), 181.938; NJ Stat. § 34:6B-1; NY Labor Law § 201-d.
Of course, American employment-at-will law does not reach overseas. In most all other countries, bosses need good cause (essentially willful misconduct) to discipline or dismiss staff, at least without triggering severance pay. Off-duty conduct rarely counts as good cause. That means employment law abroad forbids, or strictly regulates, employers from disciplining staff for off-duty/off-premises conduct involving employees’ own personal property—even misdeeds that are shocking or criminal.
Overseas, workers might believe that employment law in their country flatly prohibits employer discipline for off-duty/off-premises conduct. But these workers are wrong. Every country on Earth lets management legally fire staff for a number of off-duty/off-premises misdeeds—for example, off-duty/off-premises bribery, insider trading, antitrust collusion, trade secrets disclosure, intentional data breaches and embezzlement-by-computer-hacking. In Latin America and elsewhere, (e.g., Costa Rica Labor Code 2017 art. 78) labor codes expressly make off-duty criminal conviction for non-work-related offenses good cause for dismissal.
That said, these examples are exceptional and extreme. Outside the United States, dismissals for off-duty/off-premises legal conduct are rare and difficult to uphold. Again, overseas employers need “good cause”—essentially, proof of willful misconduct—to fire someone, and under foreign law, establishing “good cause” for an act occurring off-duty and off-premises is extremely hard to frame as “good cause,” even if it violates an on-point company policy that purports to reach beyond the workplace. Outside employment-at-will, unreasonable work rules are void, and a work rule purporting to reach legal off-duty/off-premises conduct is susceptible to being held unreasonable and void.
Overlaid on this, overseas workers may believe their country’s fundamental rights confer some sort of “freedom of speech” protecting them when they are off-duty and away from employer premises. Workers abroad tend to think “freedom of speech” under their local law applies even against their employers. In this, they may be right; the “state action” concept under American constitutional law—constitutional rights apply only as against the government—does not necessarily apply to fundamental rights in other countries.
For these reasons, a multinational trying to impose a social media policy globally bears a heavy burden to craft a rule enforceable worldwide against workers’ off-duty/off-premises “free speech” internet activity using their own personal property. How can a multinational do that?
Surely the lead strategy is to link the legal off-duty/off-premises social media activity to the job. One way to do that is to articulate, and broadly define, a phrase like “Company-Affiliated Social Media Post”—and emphasize that workers themselves get to decide whether their social media feed is “Company-Affiliated.” Under this approach, the social media policy document begins by assuring workers they are free to post whatever they want, as long as their posts are not CompanyAffiliated and do not implicate the organization. The policy takes a “hands off” approach to all social media activity except where a worker affirmatively pulls in the employer. At that point the policy defines “Company-Affiliated Social Media Post” broadly enough to prohibit all social media activity the employer has a business reason to control. For example, a global social media policy could frame its reach as follows (but edited, shortened and reworded in the organization’s corporate communications voice—the following provision exaggerates to highlight strategy and is not meant as model text for an actual policy):
This policy does not reach your social media posts unless you decide to pull the Company in. We respect, protect and uphold your right to engage freely in all social media activity that is not Company-Affiliated. Say whatever you want, however you want to say it—but keep us out of it. Your personal social media feed is your business, not our business, as long as you do not implicate us.
Whether this policy reaches any of your social media posts is up to you, not us. You control. You decide whether (or not) to opt into this policy by broadcasting a “Company-Affiliated Social Media Post” where you pull us into personal statements you broadcast on social media. It is usually best to leave us out.
When you pull the Company into your public social media feed, your posts becomes job-related. Those posts must comply with this policy. If you choose to broadcast a Company-Affiliated Social Media Post—even if you post it off-duty and away from company premises on your own device—by doing that, you opt into this policy.
“Company-Affiliated Social Media Posts” means all tweets, posts, blogs, chat-room messages, review-site reviews and other communications you broadcast on social media or the internet that:
– you make while at work or during your work time
– you make on Company-owned hardware—our equipment
– you make (even if on your own personal time, off-site and using your own hardware) by posting something that:
- mentions the Company or Company business, Company employees, customers, suppliers or competitors, or
- reveals your Company affiliation
– Remember your bio: If your bio on a social media platform reveals that you work for our Company, then all your activity on that platform constitutes CompanyAffiliated Social Media Posts
– Any social media post that “goes viral” in a way that links you to the Company is a Company-Affiliated Social Media Post
This approach may seem restrictive for employers, because it begins with a broad-sounding declaration of workers’ right to post whatever they want on social media—and because it says workers themselves get to decide whether the social media policy even applies. Also, this provision makes it hard for an employer to discipline workers for broadcasting inflammatory social media posts that in no way implicate the employer organization—the employee whose social media page says, in essence “I am a proud white supremacist” without naming the employer.
But this approach probably defines “Company-Affiliated Social Media Posts” broadly enough to meet employer needs. In fact, this approach is so broad that it will not always be fully enforceable in all contexts in all countries. This approach might be a viable way to buttress an employer’s position that its social media policy legitimately reaches worker off-duty/off-premises “free speech” worldwide.
Coming up...
In next week's entry, Dowling will answer this question: which topics should a multinational employer account for in a global social media policy?
This piece is largely based on an article originally published by Littler Mendelson, P.C., who holds the copyright. It can be read here.
NEXT: How Colgate-Palmolive used Social Media and College Students to Enhance their Employer Brand
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