Overview Can you sanction “private” expression? When their expression becomes your expression Expression by departed employees and other outsiders
Sanctioning Private Expression Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the course of four hours, take jabs at their supervisor, Phil.
Sanctioning Private Expression Jack had a long day. He goes home, cracks open a beer, and boots up his home computer. Using a picture of his supervisor taken from the company intranet and some internet based software, he alters the picture so the manager looks ridiculous. Jack posts it to his Facebook page. He feels good.
Sanctioning Private Expression Duty of fidelity applies when employee expression is likely to significantly affect a legitimate employer interest All other activity is “private” But where’s the balance?
Sanctioning Private Expression Nexus is commonly derived from An impact on the rights of other employees An impact on performance of job duties An impact on reputation
When Their Expression Becomes Yours Tim is President, Americas at a large organization who fancies himself a social media guru. He sends and e-mail to all that says, “We ought to be leaders in our field. Accordingly, I encourage all of you to use social media to advance our interests.”
When Their Expression Becomes Yours Risks Tim could now be responsible for everything his employees do online The company may now be responsible for a large wage and overtime bill for “work” assigned by Tim
When Their Expression Becomes Yours A better model Designated or “licensed” social media users Direct them to separate work from personal profiles Assert relatively strong control (guidelines, oversight, accountability) Pay them for it as work Everyone else can use social media subject to regular “internet publication policy”
Expression by Outsiders Principal Smith is a proud of his long-time stewardship of Sunny Elementary, but has met his match with Mr. and Ms. Sticky who have established an advocacy site focusing on school affairs. They’ve attacked Principal Smith’s judgement by making a number of harsh allegations that are clearly based on incorrect facts.
Expression by Outsiders The law The public is allowed to speak Must be a tort or crime intimidation, defamation, breach of confidence, copyright infringement, invasion of privacy Must look at meaning of specific words
Expression by Outsiders Non-mutually exclusive options Ignore and monitor Develop public affairs response Takedown demand to infringer Takedown notice to third-party host
Expression by Outsiders When employees are targeted The company’s reputation is distinct from the individual’s reputation Beware of potential conflict Be supportive but don’t engender expectations you’re not prepared to meet Encourage independent counsel
Expression by Outsiders When the business is targeted Consider real harms Consider downside risk of aggravation Try to develop a principled way of distinguishing between what you will and will not act upon Save your demand letter for when it matters