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The “Public” vs. “Private” Facebook Page: Thorny Issues for Employers

Posted in Human Resources (HR) Compliance, Social Media

Are you scared of social media yet

That seems to be the approach of newly-minted legal "experts" telling employers to be on guard for employees who use social media with the added suggestion that you can (and perhaps should) fire anyone who says anything silly or mildly inappropriate on Facebook. 

If only it were that easy or simple.

The fact is that the issues with social media are as complicated as ever.  It’s a point I emphasized over a year ago in a post and remains true today. 

Take, for example, the publicized incident concerning a Windsor Locks Superintendent of Schools in hot water over a status update or two (and a comment) that he wrote on his Facebook profile during his first days of work.  The school board is now considering terminating his contract at a meeting on Wednesday. 

What he said isn’t, in my view, as important as where he said it: He posted it on his relatively "private" page of "friends".   It wasn’t open to the public.  Indeed, other than one of his "friends" forwarding it to the school board, odds are most people would never have even heard of it.   (Of course, the superintendent is probably thinking of the old expression "with ‘friends’ like these….")

Should the fact that someone’s Facebook page is set to the highest "privacy" settings make a difference in how we look at issues of employee use of social media? Are we overreacting to every Facebook post?  What is the real difference between a posting like this and say, an e-mail sent out to friends? What about the "water cooler" talk? Is the fact that it is written down somewhere that significant?

These are not easy issues. However, perhaps we ought to think back to when e-mail was introduced.  How many chain letters, jokes, and other nonsense did everyone send and receive during those first few months and years? Did employers fire everyone who sent such an e-mail?

It seems that in all of the frenzy over social media, we are losing a bit of perspective too. Can’t we agree that a status update on a relatively private Facebook page that basically says you’ve had a bad day at work is far different, for example, than a posting on a public Facebook page that gives out your company’s trade secrets?

That’s not to say that discipline isn’t appropriate in cases of inappropriate use of social media. Warnings, suspensions and probation are tools that employers have often used in situations like this in the past.  But firing everyone who ever posts anything even mildly suggestive doesn’t seem to be the solution.

What we truly need is some perspective and not a zero-tolerance approach.

So, as employers, I suggest ignoring the hype about social media and getting into the nuances.  Look at the circumstances of employee use or misuse of social media. Draft your policy to provide you with the flexibility to determine the level of discipline appropriate for a misuse of such a policy. (West Hartford recently enacted a set of guidelines for its school employees if you’re looking for something current.) And don’t throw out your common sense.