If You Have A Social Media Policy, Make Sure It's Clear And Understood

| William A. Schreiner, Jr.

"Rainy Day"

The use of social media by companies and executive employees continues to get them in trouble.  We’ve covered that here, here, and here

Some companies have concluded that having a social media policy in place is enough to avoid problems with Facebook, Twitter, Instagram, and whatever other means to communicate have come down the pike.  But to work, a social media policy needs to meet at least two other conditions. 

First, a social media policy has to be clear.  Second, it also has to be communicated to, and clearly understood by, the company’s employees.

It may need more than that. But at a minimum, if the policy doesn’t have those two operating elements, then enforcing it can do a company and its managers more harm than good – at least when it comes to their reputations.  That, at least, appears to be the lesson we can learn from the case of Rhonda Lee, a Shreveport, Louisiana TV meteorologist

Or, at least, Ms. Lee was a TV meteorologist.  Her employer, KTBS-TV, fired her for violating its social media policy after Ms. Lee – who is African-American – responded to what was arguably a race-based comment about her hair style on KTBS’ Facebook page.  She also replied to a comment on that page that called the station racist for only showing children of color in a news segment on a charity event. 

In firing her, KTBS said that Ms. Lee’s responses violated a “social media policy” it put in place a couple of months before she wrote them on Facebook.  The blowback from across the Internet against KTBS has been substantial.  

I put “social media policy” in quotes there, because it’s not clear to me that KTBS’ policy is even an actual policy.  Station staff learned of it in an email from the station’s marketing manager, in which he writes he is “offer[ing] some guidance” and that his email is “more of a starting point for a ‘Social Media Best Practices’ policy for our company.”  So was the email even a policy, or “some guidance” on how to use social media? 

While the email was marked “high importance,” we know from common experience that doesn’t mean much.  Moreover, the subject line – “FB – responding to complaints” doesn’t identify the email as communicating an important policy directive from the station.  

KTBS itself may not know whether the email is a policy: when it fired Ms. Lee for violating the policy, she asked for a copy.  She claims she was told “the policy…wasn’t written down,” although KTBS seems to dispute that that’s what it told her. 

All the same, if a company is going to have a written policy for social media, it should be clear to the employees that that’s what it is.  Outside of the social media sphere, courts have used clear policies in the record as one reason to find in favor of companies in cases where employees have challenged their firings.  For example, in McGill v. Munoz, a fired employee argued that the employer’s given reason for her termination – chronic abuse of the sick leave policy – was merely a pretext for a discriminatory reason, but the court disagreed and sided with the employer, in part because the employer had followed a clear sick leave policy.  By the same token, one reason the fired employee in Woodsford v. Friendly Ford was allowed to continue his suit was because the employer lacked a written policy on insubordination (the conduct at issue). So, like other policies, social media policies that are clear, and that are identified as policies, are generally helpful to employers.  As my colleague Jason Knott has explained, written policies are the sort of evidence that can help a court resolve a case on summary judgment, before litigation costs and time have added up.  

There’s another issue raised by the Rhonda Lee case, though: to paraphrase the old thought experiment, if a clearly-written policy falls in the forest and no one is around to hear it, does it make a sound? In response to Ms. Lee’s assertion that she never saw the marketing manager’s email, KTBS told her the “social media policy” was – according to her – “mentioned in a newsroom meeting” that she didn’t attend.  We’ll have to see how the facts on this issue sort out if Ms. Lee and the station get into litigation (which they may: Ms. Lee is not shy about seeking redress in court; she has sued her prior employer in Austin, Texas).  But KTBS could have headed this issue off entirely by making sure all of the station staff understood what appropriate social media behavior was. 

We’ll keep an eye on this case and report any notable developments.  In the meantime, if you have a policy (social media or not), consider making sure it’s clear and that everyone who needs to know about it understands it.