Steamed — Employment Law Attorneys & Social Media

I’ve reached my boiling point.  I’m steaming mad.  Dear Mr. or Ms. Employment Law Attorney, Facebook is not going away.  Social media is here to stay, and if you block it, your employees will find a way.  I’m through with hearing employment law attorneys who are social media novices stand up and recommend that managers should not friend their employees on Facebook or use social media as part of their employee communication and candidate recruitment process.

I’ve fed up with hearing webinars, conference presentations, and reading articles soley with an attorneys point of view.  I’m done with standing silent and letting them continue to sell their snake oil any longer.

Bottom line is that your employment law attorney really has no idea when it comes to social media.  Yes, that means you Mr. or Ms. Employment Law Attorney.  Many of them have never posted a tweet, shared a story on Facebook, or know that delicious is a social bookmarking site and not about food.  It’s true I don’t have my J.D., but when I hear attorneys discuss social media and advice audiences of eager human resource professionals, I’m compelled to go back to school.  But then I remember that anyone can read and understand case law, I have the internet too.

Except I have one thing you don’t, practical knowledge on social media.  And because I’m in the sharing mood, Mr. or Ms. Employment Law Attorney, here are 4 things you should know about social media at work before spouting off your expertise, criticizing the tools, and poking fun at Zappos when it comes to social media.

  • Don’t friend your employees on Facebook.  While I understand that attorneys are there to be risk averse, when we don’t friend our employees we are effectively giving them the middle finger, and if employee engagement is a focus, then friend them.  Utilize a tool within Facebook called Lists.  This is where you can create lists or groups of your friends.  You can control each list to have access to your profile page.  They can be your friend without actually having access to your personal information, status updates, and photos.
  • Avoid social media when recruiting.  Advice like this is like telling people to forego having an ATS or don’t accept applications.  I’m sorry, I can’t talk to you because my employer said not to.  Um no. . . Recruiting 101 is to go where the candidates go, and if they spend time on social media, then companies should be there.  Companies should set guidelines, boundaries, and consider using tools to help limit the amount of employment law liability.  Employers should be aware of some of these emerging tools if they want to educate their audience properly.
  • Keep your employees from leaving references on LinkedIn.  I get these are endorsements.  We are not, however, verifying their dates of employment or rehire eligibility.  Consider training your staff or providing them with a template on how to write an appropriate LinkedIn, BeKnown, or BranchOut professional reference.  (Hint for attorneys, check out BeKnown and BranchOut).
  • Ban social media for the workplace.  Keeping your employees from using social media is a lost cause.  If you ban them from accessing these sites on your corporate servers, employees will find a way either using a smartphone or proxy servers.  Google “accessing Facebook at work.”  There are more than 21 million results.  Not sure what I mean, here’s a blog post that provides employes a how to access Facebook at work.
It’s shameful at the fear tactics that employment law attorneys and I can’t bite my tongue any longer.  They operate with fear and ignorance influencing executives, business leaders and HR professionals without a clear realistic business picture of social media and how it can be used in the workplace.  They lack practical application and knowledge to share with their clients and audiences.  They’re only giving half the picture, and I’ve had enough.  That is why I won’t be afraid to give a presenter at a conference session who speaks on this subject poorly and bad review.  I promise tweet and write blogs posts to generate discussion.  Because these business leaders deserve to hear both sides of the story when it comes to social media.

Do you agree?  Who’s with me?

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Jessica Miller-Merrell

Jessica Miller-Merrell

Jessica Miller-Merrell (@jmillermerrell) is a workplace change agent, author and consultant focused on human resources and talent acquisition living in Austin, TX. Recognized by Forbes as a top 50 social media influencer and is a global speaker. She’s the founder of Workology, a workplace HR resource and host of the Workology Podcast.

Reader Interactions

Comments

  1. AvatarJon Hyman says

    Employers should not go to an attorney for social media advice unless that attorney has a proven track record of using social media. You would not go to a cardiologist to have your gallbladder taken out. You shouldn’t take advice from a lawyer who does not tweet about twitter.

    • Jessica Miller-MerrellJessica Miller-Merrell says

      Hi Jon,

      Amen. I was hoping you would comment. I read your blog and enjoy it. You guys are one of the few employment law attorneys who use social media. Sadly most employment law attorneys who use social media represent the employee not the company. I’m tired of hearing these attorneys fill folks heads with fear, misinformation, and a bunch of one sided hogwash.

      Thanks for the comment.

      JMM

      • AvatarJon Hyman says

        The problem is a dangerous combination of four factors: lawyers 1) not wanting to get left out of “the next big thing,” 2) having an ego that does not permit an admission of not understanding “the next big thing,” 3) being too risk averse for their own good, and 4) not spending the time to get involved with their clients’ businesses to learn their needs.

        As with all things, there is no one-size-fits-all approach for how to handle and properly regulate social media in the workplace. No one can offer a solution until they know how an organization’s employees are currently using social media’s tools, and understands from a first-person, hands-on perspective how to use those tools.

  2. AvatarJeff Williams says

    I have a family friend who is also an attorney. She is extremely opposed to the use of social media. No one in her immediate family is on any social media outlets. I’ve had several conversations with her about this. It is her feeling that nothing good can come of social media. Why does she feel this way? First, she is not using social media and has not idea the benefits that exist. But mostly, she is regularly dealing with stupid people doing stupid things on facebook and other outlets “resulting” in divorces and family turmoil. What I keep telling her is, it is not facebook that caused the problem. It is stupid people. And if someone is going to cheat on a spouse, you can’t blame that on facebook either.

  3. AvatarEric Goldstein says

    Jessica,

    Excellent post. I wrote a post a few months back that you might find interesting:

    http://ericgoldstein.net/?p=155

    My only comment is that it CAN make sense to separate your personal and professional social media interaction. Do you want your prospects, fellow employees, even your friends at work to hear your political rants or even pictures of your kids and friends? Yes, some of that can be separated via lists, but most people don’t do that.

    One of the biggest selling points of Google+ right now are the “circles”, but I see more and more people simply posting everything to “public”, so I think there’s a lot to be learned.

    My company is pushing a strategy of separate social media accounts or fan pages for segmentation and targeting of customers. I have my personal Facebook page and then I have a “fan page” that I can use to interact with customers and prospects. We’ve set up similar arrangement with very large organizations and companies seeking to allow their agents to interact with customers – but still maintain a degree of control over the content and the overall brand.

    Thanks for the post.

    Eric

    • Jessica Miller-MerrellJessica Miller-Merrell says

      Thanks Eric. I have worked with some organizations where we came to decision that they needed to have separate business Twitter accounts. It’s not my first choice but it can be effective. If companies are fearful of turnover in a department, this is an option. Although there is a bigger problem than social media and business and personal separation. That is the company culture and environment where employees work.

      Companies will take advantage more and more an employee’s social network by hiring those with influence because of not only their skills but who they know online. This is no different than someone hiring a sales persons with contacts or their little black book.

      JMM

  4. AvatarNicole G. Strecker, Esq. says

    As both an attorney and director of a staffing firm, I understand your frustration – but I also feel that it is a little misdirected. I am constantly put in the place of reconciling my risk mitigation background with the business decisions I need to make to effectively run our organization. Here is the bottom line: don’t get mad at the attorneys that warn of all the risks of social media, that’s their job; instead direct your frustration at any business leader that makes a business decision strictly based on legal advice without considering any other factors. Most good attorneys will tell you “you can do whatever you want….here are the legal risks you take by doing it.” As attorneys at risk of malpractice suits and being disbarred, we make blanket statements first to avoid all possible risks associated with taking a certain action. Then it depends on organizational leaders to say, “I know there are risks, we need to do this. Tell me the best way to mitigate those risks.”
    Would you ask a divorce attorney if you should get a divorce? No. You go to your attorney and tell him or her you are getting a divorce and ask for help making it happen. The same follows for social media policies in the work place. Organizational leaders should make business decisions regarding social media, then follow-up with the attorneys to create a conprhensive social media policy that takes into account both business goals and the associated risks of using social media in that specific organization.
    I’d also like to note that there is so little case law in this area that it is almost impossible to know how the courts will turn when these issues ultimately make it to the court room. Attorneys can only formulate expectations of what might happen based on a comprehensive understanding of how the courts have translated seemingly unrelated case law to relate to new technology in the past. That being said, the blanket statements you mentioned are based on the policies of most law firms regarding social media: be professional; if you would not do it off-line, don’t do it on-line. Will this policy ultimately work in the age of social media – especially now that categorizing friends is so much easier on Facebook and with Google+ circles? Maybe it makes the aforementioned policy even more relevant. The law is always a little behind…it will catch-up…and then the technology will change again! 😉

    • Jessica Miller-MerrellJessica Miller-Merrell says

      Nicole,

      Let me put my rant into a little context for you. I’m at the SHRM 2011 Annual Conference and go to a session led by an employment law attorney on social media. She begins her session saying, “Did you get my tweet? I just got on Twitter yesterday.” It was downhill from there. She was not aware of the software and tools that are developed to help mitigate risk which is what the real problem is. She blindly spoke to a group of several hundred and advised them to not friend employees on Facebook not realizing that you can create groups with different security and viewing settings.
      I once sat in a session where the attorney told the group that personal cell phones are not his problem when it comes to employment law because there was no case law. This was before the rise of the smart phone but people were still texting and taking photographs inside their office and during work time.

      Thanks for the comment.

      JMM

      • AvatarNicole G. Strecker, Esq. says

        Thanks for the context – I completely agree that attorneys should never speak about topics they do not understand! Attorney Mary Wright from Ogletree Deakins put on a great presentation back in March at ERE in San Diego http://bit.ly/qURF6j –Thanks again for the follow-up!

        • AvatarMary Wright says

          Wow! Thanks, Nicole. I remember that presentation and you all were a great crowd. I have been blogging on B4J for several months now and just came across your comment. Again, a sincere thanks.

  5. Avatarmichele price says

    Amazingly it is a hole that they (attorneys) cannot find anything to ride in a vehicle through. There are always risks in everything period.

    You are at risk every time you eat a hamburger or any other fast food, yet I do not see attorneys jumping on that bandwagon.

    I know some attorneys who are versed in social media one is Adrian Dayton. Talk with him 😉

  6. AvatarCasey Christensen says

    Excellent article, with lessons for everyone. Lawyers, know what you’re talking about (an ethical obligation as well as a good marketing idea), and come with solutions other than “you can’t do this.” HR, make the business case within your organization (esp. those who hire the lawyers and giving them direction) that SM is important and worth the risk.

  7. AvatarSharon Clarke says

    Hi Jessica,

    Great post, unfortunately this problem is wide spread. HR professionals and business managers world wide have the wrong perception of social media, they see it more as a enemy rather than the true friend it actually is.

    Just like anything else in the world Social Media can be abused, the problem lies in the fact that because social media is such a new concept to business managers there is not a general policy or concept of what kind of social media behaviour is acceptable. The more the industry matures the more refined peoples interactions with social media will be, and perhaps the more businesses will embrace it.

    Sharon

    • Jessica Miller-MerrellJessica Miller-Merrell says

      Hi Sharon,

      You are absolutely correct. Social media can and will be abused just like corporate dress code policies. My issue is with attorneys and their lack of information and knowledge. They are quoting case studies and law from 5 years ago. If I hear one more person mention the Delta flight attendant, I’m going to scream. It was one of those sessions like that, and I’m not going to put up with it any longer.

      Thank you for your comment. Much appreciated!

      JMM

  8. AvatarToby Richmond says

    The problem is that a few bad employees can spoil a companies perception and social media specifically Facebook. The high profile social media faux pas recently do nothing for promoting the value of social networks. People are to relaxed and at home in their social media space, meaning that they make comments that conflict with the views or image of there employers.

  9. AvatarJP Bell says

    I 100% agree with this post.

    The problem is that everything you generally here about Facebook (As an example) is negative. The media hardly ever pick up on situations where social media has been used positively. So those people that aren’t in the know take social media as face value, something for teenagers and people with too much time.

    I work training businesses to manage social successfully, and in most case’s I have to completely re-educate people on the possible uses of social media.

    • Jessica Miller-MerrellJessica Miller-Merrell says

      JP,

      First off, thanks for the comment. I agree with you that most of my time is spent re-education and dispelling myths that some attorney or social media wannabe has filled their heads with. Keep up the good work!

      JMM

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