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What to Do Before Your Employees' Gossip Goes Viral

NEW YORK ( TheStreet) -- These days you'd be hard pressed to find a professional job seeker without a profile on LinkedIn (LNKD), a Facebook (FB) page or a Twitter account. It's obvious the way we communicate has changed -- but should it affect the way we hire and manage employees?

An overwhelming majority of companies -- 92% -- use social media to recruit, according to a recent survey by Jobvite. But what happens once an employment offer is made? There are no definitive rules on how to manage social media in the workplace, but there are steps you can take to ensure your employees and your lawyers "like" your policies and #understandtherules.

We checked in with legal and workplace experts to find answers to some of the most frequently asked workplace social media questions.

Break this down for me. What are the do's and don'ts of social media in the workplace?

"There is no hard and fast rule," says Anthony Rainone, employment law partner at Brach Eichler in Roseland, NJ.

In a situation where employees are fighting over social media, Rainone says that discipline depends on what was said.

"The easy situation is one employee making physically threatening remarks to another employee," he says. "In that case, an employer should feel comfortable disciplining or terminating the threatening employee."

Those situations are rare, though. The most common situation is much harder to combat.

"The more common situation is one employee making a comment about or to another employee via a Facebook post. Then the issues that arise include whether the comment constitutes unlawful harassment and whether the employer had knowledge of the harassment."

Other issues include whether the comment was made by a supervisory employee and if the employer had knowledge of the harassing statement and did not act promptly with disciplinary action.

That sounds complicated. What should employers do as a baseline to keep themselves safe before problems arise?

"We usually recommend employers of all sizes incorporate a social media usage policy into their employment and procedures manual," Rainone says. "This is something even a five-employee business should have."

But the policy must be crafted so as not interfere with employees' rights. For example, even if your employees have fought about touchy topics such as politics and religion, it's not OK to restrict them from posting those items.

"I would caution against such broad policies in the case of an employee's personal social media account," Rainone says. "When employers try to take action based upon lawful employee activities outside of the workplace -- however distasteful they may be -- they are taking an unnecessary risk of litigation."

Another good rule of thumb employers and management should keep in mind is not to "friend" any subordinate employees on Facebook. LinkedIn, however, is OK for employees of any level to connect, he says.

So exactly what should my electronic communication policy look like?

"We have to understand that social media is evolving and with that, employees will use it no matter what you say," Bruce Clarke, president and chief executive of CAI, a human resource management firm in Raleigh, N.C.

Overall, social media policies should avoid too much micro-management and pre-approval, Clarke says. Employees should be reminded upfront that what they post on social media will last forever, and they need to know that "I didn't think anyone would see it," is not an excuse.

"Make sure they understand both the 'always dos' and 'never dos' of social media," he says. "At the same time, you cannot define the middle gray ground that is always shifting."

What employers can do is say something like, "Unless social media is your job at this company, never use your job title or otherwise imply you are speaking on behalf of our corporation." You can also remind employees to assume that their Facebook friends can figure out where they work even if their place of employment isn't listed in their profile, Clarke adds.

"Remind them to always assume that readers can connect them to the company, and that they need to write and behave in a manner consistent with their role," Clarke says.

When I'm laying out my communications policy, what are the dangers of being too permissive or too restrictive?

For starters, policies should state that email, voice mail messages and computer files are the property of the company, says Andrew Moskowitz, employment law partner at Pashman Stein in Hackensack, NJ.

The policy should state that employees may use email and the company's computer for business purposes only, he says. The company should also reserve the right to review all communications on its media systems.

"I would not recommend that a company otherwise restrict employees' use of Facebook by, for example, stating that co-workers cannot be 'friends' with each other. However, where employees are engaged in a personal dispute on Facebook that disrupts the office, a company is permitted to take action," Moskowitz says.

As for companies that might consider banning social media altogether, it's not a realistic policy for today's environment, says Vicky Oliver, workplace expert and author of 301 Smart Answers to Tough Business Etiquette Questions.

"Social media is here to stay. Banning it from a workplace is like trying to ban someone from using the telephone to make a personal call," she says. "I know many companies ban Facebook, but I don't feel they would if they could hear what their employees say about working there!"

Limits on social media say the company doesn't trust its own workers to work hard, Oliver says.

"By banning social media, the company is keeping its employees stuck in 20th century ways of working that may not benefit the company long term," she adds.

I've heard that laws and perceptions on social media in the workplace are changing. What's on the horizon?

"The law is shifting rapidly on employer options when employees slam their boss, workplace or product service," Clarke says. "Generally speaking, employers have more flexibility to prohibit and punish product and service criticism, but less ability to prevent claims of perceived mistreatment, low pay or a bad manager."

In the past couple of years, the National Labor Relations Board has issued three reports on employee use of social media and the potential for an employer to commit an unfair labor practice by relying on information from the employee's social media account, Rainone says.

"For example, if one employee uses her Facebook account to post negative comments about working conditions, and another employee simply "likes" the posting, the two employees are arguably engaged in protected concerted activity under the National Labor Relations Act," he says.

If you were to discipline or terminate the employees for such an activity, you might be committing an unfair labor practice and be issued an administrative charge for such action by the NLRB, Rainone cautions.

"Like most other employment issues, the law is unsettled and it is on the radar of administrative agencies like the NLRB," Rainone says.

But no matter what laws take shape in future, employers should have a policy in place addressing social media usage. That policy should be reviewed by an employment attorney that understands not only the law, but also the mechanics of how different social media platforms work.

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