The board is responsible for social media

Today “Social Media” such as Facebook, Twitter, LinkedIn and Google  is considered an IT (information technology) issue.  King III states that the board is responsible for ensuring that an organisation has suitable policies to address IT.  Therefore, by implication, the board is responsible for ensuring that a suitable policy is in place to address social media.

Labour Law was created prior to the age of Facebook, Twitter and Google (mail, buzz, plus).  Organizational labour practices have been filling in the blanks since, but the risk remains.  As more cases related to social media are decided, so social media practices will continue to change and so will the risks associated with them.

In the meantime, what steps should the board take to reduce the chances of becoming embroiled in a dispute with employees about the use of social media?

1. Become familiar with case developments

In the US,

Two recent reports show that social media is having an impact on labor practices.

1. On Aug. 5, the U.S. Chamber of Commerce issued a survey of more than 100 cases related to social media and the workplace that were filed within the past 18 to 20 months with the National Labor Relations Board (NLRB).
2. Two weeks later, the acting general counsel of the NLRB released a report that described recent case developments related to the use of social media and employers’ policies.

Among the cases discussed in the NLRB report, which was issued Aug. 18, are:

• Four cases involving employees using Facebook that found that the employees’ activity was “protected” and “concerted” because they were discussing terms and conditions of employment with fellow employees;
• Five cases involving Facebook or Twitter posts by employees in which the activity was determined to be unprotected under the US National Labor Relations Act (NLRA), which applies to both unionized and nonunionized employees and prohibits employers from committing unfair labor practices; and
• Five cases in which some provisions of employers’ social media policies were found to be overly broad, potentially prohibiting Section 7 activity.

This information was provided by Raj Chaudhary. He can be contacted at raj.chaudhary@crowehorwath.com.

In South Africa,

Several law firms also post relevant updates on their websites.

The CCMA (The Commission for Conciliation, Mediation and Arbitration) is a source of important information. An email (CCMAil) is distributed quarterly. For a subscription, contact HO@CCMA.org.za

1. The CCMA made an important decision about employee’s rights to privacy on webmail services, like Gmail.  The decision is reported under Smith and Partners in Sexual Health (Non-Profit) CCMA (WECT 13711-10).
2. The CCMA made an important decision regarding Facebook. The decision is reported under Sedick & Another and Krisray (Pty) Ltd (2011) (32 ILJ 752). 

2. Understand the benefits and the risks

In the connected world organisations participate in today, it is extremely important that such channels are not closed to employees, they must just be effectively managed.

Social Media brings with it many viable cost reduction benefits such as those for: recruitment, information, communication and disclosure.

The Kelly Global Workforce Index 2011 revealed that 29% of respondents secured their most recent position through word-of-mouth referrals, followed by recruitment firms (26%), direct approaches from employers (20%), print advertisements (10%), online job postings (8%), other methods (5%) and social media sites (1%).

The board should ensure that the company is actively participating and able to participate in the benefits Social Media brings. King III states that the board should:

ensure that there is a process in place to identify and exploit opportunities to improve the performance and sustainability of the company through the use of IT.

However, with improved communication comes also comes increased risk:

The board must ensure that the Chief Executive Officer is able to:

1. Articulate the risks faced by the company (labour, information security etc) to completion / exhaustion;
2. Demonstrate how the risks are being mitigated;
3. Present the contingecy plans.

3. Implement solid policies

King III states that the board should be ensuring that “an IT charter and policies are established and implemented.”

The law firm, Webber Wentzel, posted the following on their website:

“In light of the legal concerns that an employer may be faced with, coupled with the potential commercial impact of an employee’s use of social networking platforms, employers would be well advised to have a specific policy in place regulating the use of social networking platforms and social media. Such a policy should include (in no particular order):

• when the employee may access social networking platforms;
• if, and to what extent, the employee is entitled to access social networking platforms on electronic devices provided solely for business purposes (for example, a smartphone or iPad);
  general rules of social networking “etiquette” – especially when discussing the employer, other employees, clients or suppliers of the employer (as well as any competitors of the employer); and
• how the employee’s duty of good faith extends to his or her behaviour on social networking platforms.”

4. Educate

The board must ensure that their position on social media is well communicated.

This communication should include all stakeholders:

• Employees: Management must ensure that employees are aware of the organization’s social media strategy and policies and trained according to the mitigation plans.
• Suppliers: Organizations or individuals providing services and products to the organisation should be in no doubt as to the organisation’s position on the use of social media – the organisation’s strategy to both leverage and manage the channel. Suppliers should also be made aware of how they can participate in this channel with the organisation.
• Regulators: With the speed and breadth of communication made available by the social media channel, it is important that the organisation’s regulators responses are managed. It is in the organisation’s interest to communicate with pertinent regulators and develop a method of response in the event that a detrimental message is received through the social media.
• Community: Shakespear portrays the position well in his play “Julius Caesar”. In Act III, scene ii:

The scene revolves round two speeches, one by Brutus and the other by Mark Antony.  Both are made to the citizens of Rome who are fickle and can be easily swayed. Whereas Brutus’ speech written in prose is crude, does appeal to the rabble, Mark Antony’s speech is eloquent and inspirational, and quickly wins them back.  Brutus has to struggle with his audience to obtain their attention, whereas Mark Antony immediately gets their attention by entering carrying Caesar’s body.

No community has been found to be as fickle as that of the social media community.

The board must ensure that the organisations position on the use of social media is clear.

 

 

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