Learn how to protect, grow digital reputation
Internet immortality sounds enticing for working professionals in the Digital Age, unless it involves allegations of libel, slander and defamation of character. The World Wide Web rarely forgets and never forgives, especially with inflammatory social media posts that can cost a job, damage an otherwise stellar reputation or even sabotage a career.
How far is too far when sharing personal information, juicy gossip or provocative photos about yourself or others on social media, or in traditional media?
“In the world of social media, there is no place which is too far,” said James Jorgensen, an attorney with Hoeppner Wagner & Evans LLP in Valparaiso.
“Unfortunately, social media takes on a life of its own, and control is lost.”
Jorgensen and other legal experts agree this topic can be confusing and complicated, with multiple ramifications from a workplace standpoint.
However, its most crucial aspect is quite simple: Once something has been dumped into the depths of cyberspace, with the mindless simplicity of a single click, it’s extremely difficult or absolutely impossible to retrieve it or remove it.
“Unlike verbal confrontations, social media presents lasting consequences that leave a digital footprint long beyond the initial discussion,” said Matthew Hanson, clinical assistant professor of marketing at Purdue University Northwest’s College of Business.
“We need to be reminded that we are all in charge of our own unique personal brands.
“What we end up posting, sharing and even who we connect with become part of the positioning that we take on to the general public.
“Everyone’s threshold is different, but keep in mind that your threshold may be seen in an unfriendly light to someone else’s threshold.”
Jeanine Gozdecki, a partner with Barnes and Thornburg LLP in South Bend, said that good manners go a long way regarding this issue.
“In kindergarten, some children learn about three gates: What you say must first be first. Second, it must be kind, and third it must be necessary,” she said. “If you crash through any or all of the gates, you’ve gone too far.”
Social media’s ripple effect
Your social media posts might win or lose friends and coworkers, but according to a recent CareerBuilder survey, those posts also can have a big impact on prospective employers. Seventy percent of employers use social networking sites to research job candidates, with 7 percent more of employers planning to start the practice, the survey said.
Of those employers who do conduct social media research, 57 percent have found content that caused them not to hire candidates.
According to employers who use social networking sites to research potential job candidates, this is what they’re looking for:
- Information that supports their qualifications for the job: 58 percent
- If the candidate has a professional online persona: 50 percent
- What other people are posting about the candidate: 34 percent
- A reason not to hire the candidate: 22 percent
One of Hanson’s favorite hiring questions, “what’s the biggest mistake you ever made?” offers an insight into a potential employee’s mentality. He typically first tells them one of his own to jump start the touchy conversation, showing that we are all human.
Robin Carlascio, owner of The Idea Factory, a marketing communications firm in Crown Point, offers her clients sage wisdom likely learned in childhood.
“If you wouldn’t say it to someone’s face, don’t say it on social media,” she said. “Sound simple? Not so much. Like it or not, we are a knee-jerk society. When someone is criticized, it is human nature to want to poke back. However, a negative social media presence can undo the best reputation in 127 words or less.”
Trent McCain, a principal at McCain Law Offices in Merrillville, added, “If I am advising employers, I would urge them to have an explicit social media policy spelling out the do’s and don’ts of social media interaction.”
There are two general types of defamation: libel, defined by written defamation, and slander, defined by verbal defamation.
“Our American law on libel, slander and defamation traces back to the British Common law,” Jorgensen said. “It arose, in part, in a world of small villages where a reputation could be clearly damaged because it was so easy for everything to be made public.”
Social media takes this concept to the extreme.
“In feudal England, a person might have had the opportunity to speak to each of the villagers who heard the damaging statement,” Jorgensen said. “With respect to social media, it is impossible to engage everyone who heard or saw the offending statement.”
When it comes to stepping into the quicksand of potentially libelous statements on social media, adding “I believe” or “I think” to preface a defamatory opinion doesn’t necessarily safeguard you from legal allegations, which is contrary to popular belief.
“It’s not much of a defense for the employee to say he heard from someone else or that she discovered it online,” Gozdecki said.
If it’s not true and the conversation is not a “matter of public concern,” then someone’s lack of knowledge as to whether the information is true or false makes no difference.
“That is no defense,” Gozdecki said.
Discovering the truth
From a legal perspective, the most important question regarding potentially libelous language should be, “is it true?” or, if the “information” or “gossip” is not true, then the employee sharing it could be sued for defamation.
“As human beings, we all make mistakes,” Hanson said. “The first step you should take is to own the mistakes you’ve made. Too often, we see mistakes made by big companies, and they try to hide it. Don’t do this because authenticity is key to building relationships.”
Gozdecki said public employers, in general, may not restrict off-duty speech without running afoul of the First Amendment. Private employers enjoy a little more leeway, she said.
“Off-duty social media exchanges between employees who are threatening, demeaning, harassing or simply cruel, could easily spill over into the workplace causing workplace issues,” Gozdecki said. “If employers can objectively say the conduct violates a policy, reveals confidential information, or negatively impacts the workplace, it’s fair game to tell the employees to knock it off.”
Jorgensen adds that there are limits as to what an employer can, or should, do in such situations. One limitation has been created by the National Labor Relations Board.
“The board has held that social media is the new ‘office watercooler’ where employees can gather to discuss or complain about terms and conditions of employment. When this occurs, even in nonunion workplaces, the activity can be protected,” he said.
If employees are posting information that can be interpreted to be about the terms and conditions of their employment (such as complaining about a supervisor), then their actions may be protected under the National Labor Relations Act, for engaging in “protected concerted activity.”
“If an employer interferes in, tries to prohibit or takes actions because of that discussion, the employer (might) be facing an unfair labor practices charge before the NLRB,” Gozdecki said.
Jorgensen said some conduct, including the making of threats of violence or comments that violate the employer’s anti-harassment policies, might not be protected, and the employer can address them.
If a social media exchange spills into the workplace, an employer has considerable leeway in addressing the consequences of it, he said.
“This typically takes the form of enforcing existing employment policies relating to harassment and workplace violence,” Jorgensen said.
Hanson warns a damaged or discredited reputation in the workplace can be difficult to repair.
“I wouldn’t say it is impossible, but our minds create a positioning mindset for everything that we encounter,” he said.
“For example, you would be hard pressed to create a luxury Walmart store. The same holds true for individuals, so be careful with your reputation both professionally and personally. Perceptions are hard to change.”
Gozdecki reinforced that point.
“Why put your reputation and your career at risk?” Gozdecki added. “Once you’ve caused that damage, it’s hard to fix.”
McCain reiterated the point: “Society loves a good lie.”
“Sometimes just an allegation is enough to destroy someone,” he said. “If you have been wrongly accused, then I suggest you fight to get your name back in public.
“You need to move quickly if you have been defamed.”
Carlascio said in a world where attention spans are dwindling and SnapChat posts disappear in real time, it is fair to say most reputations can be repaired.
“Did you or your employee create the damage? Issuing a statement—on the platform where it appeared—detailing the action taken to repair the damage is often enough to stem the tide,” Carlascio said.
The experts say it also might be good measure for the individual who may have sparked the situation to perform their own damage control.
“If you’re an employee, fix it—quickly. Remove the post. Apologize,” Gozdecki said.
“The same applies if you’re an employer, and one of your management team acted in this way. Fixing it, however, may involve consulting with legal counsel first.”
Taking precautions
From a business owner standpoint—whether or not you have a social media presence—you need to be prepared with social media policies. A lack of a Facebook page or a Twitter feed doesn’t make you immune from the vitriol of a dissatisfied customer, client or employee.
“Designate an employee whose job it is to check your company by name or keywords on the various platforms on a regular basis to guarantee nothing is flying under the corporate radar,” Carlascio said. “When a situation arises, bring out the policies and make decisions. When there is a calming of the situation, sit down and decide how well your policies fit your needs. Tweak. Repeat.”
Employees who are managers have a higher duty with more responsibilities. The obligation to keep certain work-related information private is absolutely necessary, legal experts say.
For example, if one of your direct reports has a mental breakdown at the office, get the employee help, manage your work, and don’t say a word about it to anyone other than those who need to know.
Sounds like proper protocol, correct?
Later at home, however, if you post online details of the incident, you’ll likely be looking for a new job soon.
“If you are a substance abuse counselor and you publish pictures of you downing tequila shots, that will reflect badly on you and your employer,” Gozdecki said.
Also, sharing photos that put someone in a bad light, or that could place your employer in a bad light, is never a good idea. Think first before posting such photos, if at all, experts say.
On the flip side, for victims of social media libel or defamation, resist the urge to respond emotionally. Instead take the time to develop a measured response, if you respond at all.
“If after some deliberation, you are in doubt, consult a lawyer in the beginning. It’s way more expensive in the end,” McCain said.
What safeguards can be taken to avoid such a career-altering problem? First, realize that technology provides access to many areas of your brand or company.
“Think of social media as a direct view into who you are and what’s important to you,” Hanson said. “I advise everyone to be careful on how and who you give access to, and what you post.”
Next, start locking down your digital footprint.
“If you’re posting things on Instagram or Facebook that you don’t want people at work to see, add security measures to control who sees your content,” Hanson said. “Or better yet, think twice before you reach for the phone or hit enter.”
For instance, posting an update bragging about merely receiving a warning ticket for driving 80 mph isn’t going to help you land your next sales position.
Be proactive, not reactive.
“Consider the worst any of those groups could say about you or your company and be prepared,” Carlascio said.
Create a response plan, get a consensus, adopt it, and then mark your calendar for at least a semi-annual review to make sure those policies are keeping pace with your company’s social media presence, experts say.
Finally, don’t procrastinate.
If you or your business are being negatively depicted, determine the veracity of the claim, and the source, before deciding if a statement is warranted immediately or if the best choice is to sit tight.
There are cases where saying nothing is the best remedy, or diffusing a volatile situation without a post, a tweet or an emoji.
“The stakes can be high,” Carlascio said.
Click here to read more from the Oct-Nov-2018 issue of Northwest Indiana Business Magazine.
