Developing Your Social Media Policies Dan Michaluk AMCTO Annual Conference 9 June 2010
Outline <ul><li>Legal issues and other risks </li></ul><ul><li>Policy imperatives </li></ul>
Legal Issues and Other Risks <ul><li>Bob and Sue had a long day. They go to the Dirty Dog Pub after work and, over the cou...
Legal Issues and Other risks <ul><li>Jack had a long day. He goes home, cracks open a beer, and boots up his home computer...
Legal Issues and Other Risks <ul><li>Duty of fidelity applies when employee expression  is likely to significantly affect ...
Legal Issues and Other Risks <ul><li>Employee speech can negatively… </li></ul><ul><ul><li>… affect an employer’s duty to ...
Legal Issues and Other Risks <ul><ul><li>Municipalities are different </li></ul></ul><ul><ul><ul><li>May need to tolerate ...
Legal Issues and Other Risks <ul><li>Tim is President, Americas at a large organization who fancies himself a social media...
Legal Issues and Other Risks <ul><li>Risks </li></ul><ul><ul><li>Tim could now be responsible for everything his employees...
Policy Imperatives <ul><li>Consider two policies </li></ul><ul><ul><li>One that guides all employees </li></ul></ul><ul><u...
Policy Imperatives <ul><li>Policy for all employees – theme </li></ul><ul><ul><li>You can do it if you want </li></ul></ul...
Policy Imperatives <ul><li>Policy for all employees – content </li></ul><ul><ul><li>Start with a statement of principle </...
Policy Imperatives <ul><li>Greater control over “deputized communicators” </li></ul><ul><ul><li>Establish clear objectives...
Developing Your Social Media Policies Dan Michaluk AMCTO Annual Conference 9 June 2010
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  • -Thank you -Comment on RJR and MB presentation -Blogger… supportive but must deal with risks
  • -Here’s outline -Two parts -Legal issues and other risks -Focus is on employees because objective is to give you some takeaways about policy -Can control your citizenry through policy (unfortunately)
  • Here’s a scenario Not so odd Anyone think this interferes with an employer’s interest? Nah. It’s blowing off steam. It’s “private” off duty conduct. Outside the workplace – no physical nexus. No intangible nexus to legitimate interests.
  • This is (sadly) what happens today. Same question. Is it private? Would it make a difference if Jack has only ten friends? What if none of them are employees? Happens all the time. This is how people blow off steam now. There’s a perception that this is somehow analogous to a barroom chat with a close friend. But let’s look at the difference. It’s clearly a publication. Often to other employees. Even if not there’s no legal or practical restriction on what recipients can do with the communication. Jack’s picture of his supervisor can be copied and mailed around. So there’s a good argument that this is about as public as it gets. Consistent with a traditional privacy law principle – a disclosure to one is a disclosure to all. This is the challenge that municipalities and other employers are dealing with today
  • Here’s a very simple description of the legal rule Every employee has a duty of loyalty and fidelity This gives employers, including municipalities, a right to intervene when expression is likely to significantly affect a legitimate interest Looking for a “nexus” or connection to the workplace Invites a very contextual analysis Thousand factors… Did the person identify themselves as an employee? What computer? Did the public make complaints? Did other employees make complaints?
  • Here’s the typical sources of a connection In order of moral imperative Municipalities have a duty to ensure a safe and harassment free workplace The last three are related Let me use the next slide to explain in greater detail
  • Private employers can take issue with an employee’s harm to reputation Municipalities can’t are limited in pursuing protecting reputation Can intervene when employee action prejudices public affairs Can take issue with harm to job duties and public perception of same Fraser – unit supervisor for Rev Can – vitriolic rantings about constitutional amendments Haydon – drug evaluator – 5 days suspension for criticizing Brazilian Beef ban Labadie – correctional officer – wrote book critical of institution… co-workers mentioned by name Some tolerance is required… look at all factors… level of employment… nature and content of expression
  • So that’s issue number one Issue number two is about corporate use of social media Here’s a scenario that illustrates a danger of jumping on the corporate communications social media bandwagon without thinking through some important employment-related issues How many of you are concerned that Tim has just assigned work?
  • I am Here are the two legal risks flowing from that statement… And I think they are relatively self-explanatory to most of you So as HR or legal, reach out to your communications pros Work with them, but make sure they understand these risks
  • Two policies One for all employees… that embodies the duty of loyalty… that embodies other rules related to confidential information, time theft… One to control your corporate presence RJR and MB have retained control through technical means Also seen control through policy based means… much more risky but possible
  • Very important not to direct people to use social media for work-related purposes Be fair to them Social norms are confusing They think its private They forget they are accountable So help them out Is a way to launch it in a light-handed manner Couple particular traps that should be addressed
  • Here’s the typical content Need a broad statement – our HM policy says… Use your judgment.  Take great care to avoid publishing anything that may harm your professional reputation or the firm’s reputation and business.   For lawyers, your reputation and the firm’s reputation are always tied, so always represent yourself and the firm well. For staff, if you choose to identify yourself as an employee of the firm in posting information to the internet, you must also represent yourself and the firm well. Other policies will be engaged….. control of personal information, human rights and respectuful workplace
  • Then if you go with a liberalized corporate model Red, green and amber Last two points are legal… it is work…. Don’t have to pay people more… but make sure it fits within their day
  • Developing your social media policies amcto presentation

    1. 1. Developing Your Social Media Policies Dan Michaluk AMCTO Annual Conference 9 June 2010
    2. 2. Outline <ul><li>Legal issues and other risks </li></ul><ul><li>Policy imperatives </li></ul>
    3. 3. Legal Issues and Other Risks <ul><li>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. </li></ul>
    4. 4. Legal Issues and Other risks <ul><li>Jack had a long day. He goes home, cracks open a beer, and boots up his home computer. </li></ul><ul><li>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. </li></ul><ul><li>Jack posts it to his Facebook page. He feels good. </li></ul>
    5. 5. Legal Issues and Other Risks <ul><li>Duty of fidelity applies when employee expression is likely to significantly affect a legitimate employer interest </li></ul><ul><li>All other activity is “private” </li></ul>
    6. 6. Legal Issues and Other Risks <ul><li>Employee speech can negatively… </li></ul><ul><ul><li>… affect an employer’s duty to other employees </li></ul></ul><ul><ul><li>… affect an employee’s ability to do his/her job </li></ul></ul><ul><ul><li>… affect public perception of employee performance </li></ul></ul><ul><ul><li>… affect an employer’s reputation </li></ul></ul>
    7. 7. Legal Issues and Other Risks <ul><ul><li>Municipalities are different </li></ul></ul><ul><ul><ul><li>May need to tolerate true reputational harm </li></ul></ul></ul><ul><ul><ul><li>But do have a legitimate interest in public affairs </li></ul></ul></ul><ul><ul><ul><li>Case law recognizes that attacks on government policy can interfere with job duties </li></ul></ul></ul>
    8. 8. Legal Issues and Other Risks <ul><li>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.” </li></ul>
    9. 9. Legal Issues and Other Risks <ul><li>Risks </li></ul><ul><ul><li>Tim could now be responsible for everything his employees do online </li></ul></ul><ul><ul><li>The company may now be responsible for a large wage and overtime bill for “work” assigned by Tim </li></ul></ul>
    10. 10. Policy Imperatives <ul><li>Consider two policies </li></ul><ul><ul><li>One that guides all employees </li></ul></ul><ul><ul><li>One that guides those who are licensed to speak on behalf of the municipality </li></ul></ul>
    11. 11. Policy Imperatives <ul><li>Policy for all employees – theme </li></ul><ul><ul><li>You can do it if you want </li></ul></ul><ul><ul><li>Here’s how you meet our expectations </li></ul></ul><ul><ul><li>Be careful </li></ul></ul><ul><ul><ul><li>If you publish to “friends” you’re still accountable </li></ul></ul></ul><ul><ul><ul><li>Identifying yourself as an employee comes with risks </li></ul></ul></ul>
    12. 12. Policy Imperatives <ul><li>Policy for all employees – content </li></ul><ul><ul><li>Start with a statement of principle </li></ul></ul><ul><ul><li>Then rules that address </li></ul></ul><ul><ul><ul><li>Confidential information, personal information </li></ul></ul></ul><ul><ul><ul><li>Respect for other employees, clients, citizens </li></ul></ul></ul><ul><ul><ul><li>Conflict of interest, conflict with job duties </li></ul></ul></ul><ul><ul><ul><li>Time theft </li></ul></ul></ul><ul><ul><li>Refer to other policies </li></ul></ul><ul><ul><li>Offer support </li></ul></ul>
    13. 13. Policy Imperatives <ul><li>Greater control over “deputized communicators” </li></ul><ul><ul><li>Establish clear objectives </li></ul></ul><ul><ul><li>Identify forbidden topics - never </li></ul></ul><ul><ul><li>Identify safe topics – go for it, no review </li></ul></ul><ul><ul><li>Create a workable review process </li></ul></ul><ul><ul><li>Measure time, effort and outcome </li></ul></ul><ul><ul><li>Pay wages for work, reward performance </li></ul></ul>
    14. 14. Developing Your Social Media Policies Dan Michaluk AMCTO Annual Conference 9 June 2010

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