Human Talent or Party Animal? When an Employee’s Social Media Content Becomes a Legal Liability

Everyone loved the sales candidate you want to hire. He had a great resume, and was so money-motivated, he made Scott Boras look like a pushover. With a jawline like cut granite, and sideburns white as the driven snow, he could double for Mitt Romney. He had everyone at “hello.” Make him an offer quickly, before your competitor snatches him away.

Not so fast! Your HR director told you she just discovered a crude rant on his personal blog, along with some zesty photos that would make his mom blush. Hire him, regardless?

Some people would have little compunction, according to a conversation on Focus (If your absolute best candidate had a 'questionable' Facebook wall, would you hire him anyway?), which offered this comment, “If the person is a great fit for the position, then hire them, but mention that they should make their questionable (Facebook) profile private . . ." Of course, one person’s questionable is another person’s normal. Still want to make that offer? What are your risks?

More than you think. In a recent blog, Kenneth Liu, an intellectual property and Internet attorney at the law firm Gammon and Grange, wrote “In the social media world, the line between one's personal life and professional life is becoming increasingly blurred. This ambiguity increases the risk of an organization being held liable for the online posts of its employees.”

Ambiguity brought about because 24-7, not 9-5, now marks business time, and mobile technology has obliterated the traditional notion that workplaces are anchored to specific physical locations. Exactly when employees are “on the job” isn’t as easy to figure out as it once was. “Sure, I sent a raunchy Tweet on the way back from the sales meeting. But it was 11:30 pm, and I was at the bar, waiting for my connecting flight in Dallas.”

That situation creates a thorny issue, not just for employers, but for the courts. The legal definition of “within the scope of employment” leaves much room for interpretation. As Liu wrote me in an e-mail, “One of the $8 million questions that courts are wrestling with now is whether statements made by employees in social media can be attributed to the employer, and there is a lot of gray area.

“The key point to note is simply that it is possible for employers to be held liable for employees' social media statements that cause harm, even if made ostensibly off the job. But whether liability actually will be imposed in any particular situation is hard to predict. Employers need to be aware of the risk and take steps to mitigate that risk by setting up appropriate policies to guide their employees' online actions.”

Excellent advice, even if you believe every employee should be entitled to clear, inviolable partitions between his or her professional life and personal social life. Should’s rarely matter in civil or criminal court, to paraphrase some wisdom I received early in my career.

For companies that seek to manage their legal risks from social media, Liu offers the following recommendations:

1. Direct your employees not to post anything that they would not want to see on the front page of The New York Times or to hear on the witness stand.

2. If you're not allowed to do it in the "real world," you're probably not allowed to do it in a virtual world. Those prohibitions include misusing or misrepresenting any organization’s intellectual property or trademarks, making harassing, discriminating or defamatory statements, or providing false information.

3. Implement a social media policy to govern use of social media by employees. Put the policy in writing, and tailor it to your organization’s mission and your community’s needs.

4. Instruct employees to use only official organization social media accounts for conducting business. Personal accounts create confusion with customers because it’s unclear whose voice is behind a post. Would your prospects understand why there are consecutive Tweets announcing your new product release, followed by one ranting about the long line at the dry cleaner? In addition, organizations that maintain ownership of social media accounts have the ability to claim the content and communities when employees leave.

Strategy development of any kind requires risk assessment, which begins with asking “what could go wrong?” followed by planning for the scenarios. Practice due diligence, and trust your instinct, because if something doesn’t seem right, it probably isn’t right. It doesn’t matter whether you’re talking about dark alleys, or the social media posts of a job candidate or employee.

And next time you’re tempted to Tweet your iPhone picture of the attractive bartender who just poured your drink, find out who’s picking up the tab—you or your company. It could make a difference. In today’s litigious world, you can’t be too careful with social media.