Compliance is good, right? So there shouldn’t be any controversy about a new tool that enables compliance. So far, there hasn’t been much resistance to corporate social media policies or to the use of monitoring tools for Facebook, Twitter, and other social media sites.
On Wednesday, however, a press release from compliance software vendor Actiance announcing some new LinkedIn features for its Socialite social media monitoring and management software resulted in this headline:
Actiance: All your LinkedIn profiles belong to us
That isn’t exactly what the company says in its press release. What the Actiance press release said is:
“Actiance today announced new capabilities within its Socialite solution to proactively allow organizations to approve content and changes made to employee LinkedIn profiles The only vendor to provide Static Content Pre-Approval Workflow, Actiance ensures all companies, including financial services firms, can remain in compliance with regulations, such as Financial Industry Regulatory Advisory (FINRA) Regulatory Notice 10-06, which requires all static content to be pre-approved prior to publishing.”
The press release makes it clear that the product is specific to companies regulated under FINRA guidelines – and FINRA has clearly stated that in the financial services industry, there is no line of demarcation between a registered representative’s personal and professional use of social media. FINRA also defines LinkedIn profiles as static content that requires pre-approval.
So how did announcing a new tool for financial industry social media compliance turn into a headline that seems designed to create controversy? To put it simply, LinkedIn is different in the minds of many users.
What makes LinkedIn different is that a lot of people use LinkedIn as a way to develop connections that will boost their careers – or as a job search and business development site. Until recently few companies had LinkedIn pages – and many LinkedIn users have maintained profiles through multiple jobs, and feel strongly that they are personal and no business of their current employer so long as they are not used to speak for the company.
Recently, however, LinkedIn has become one of the most powerful social media channels for corporate and local marketers as well. Many multi-channel marketing organizations have reported outstanding results from participation in LinkedIn Groups and communities, and are encouraging employee use of the product as part of corporate marketing efforts.
Distributed Marketing decided to ask insurance, legal, HR, and social media experts from around the country for their thoughts on the subject – and selected eight of the most interesting replies. Most of the experts who volunteered their thoughts saw both sides of the question – that of the corporation struggling to comply with regulations, and the employee who wants to separate personal and professional use of social media tools.
Over 80 comments readers of Peter Shankman’s HARO service responded. What set these eight experts apart was the insightful or practical comments they provided to help employers or employees struggling with social media compliance.
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Insurance industry expert Bill Tyson, CEO, Strategic Marketing Plus, LLC can see the issue from both sides – the need of businesses in regulated industries to monitor online activity, and the need of business professionals to use technology to help them achieve their career goals.
“It’s a fact, social media has the potential to magnify common business risks such as: legal, compliance and regulatory risks, brand or reputation risks, stock price manipulation and/or insider trading risks, leaks of confidential information – just to name a few.
“The Financial reforms underway in the USA (and other parts of the world) will definitely require heavier policing of employee behavior and conduct and that extends beyond the workplace. Unfortunately, this includes stricter enforcement of and adherence to those policies and procedures. Without such a tool, how can a business avoid nasty surprises and truly monitor and enforce policies, non-disclosure agreements and codes of conduct, proving they are in fact in compliance with such laws and regulations?
“Similar to information security, it is now highly probable that clients, investors and insurers will one day insist that you not only adopt stricter policing and enforcement procedures but you prove it. This tool helps a compliance officer do that – and I am all for that type of loss control and mitigation of business risks.
“That being said, I think this application crosses the demarcation line between employee and private individual, when you consider this feature that goes well beyond monitoring:
‘Socialite intercepts end-user edits of LinkedIn profiles and automatically re-routes the changesto a compliance officer for review. The reviewer is then able to identify the changes made and can either accept or reject the edits as well as making comments.’
“To me, the capturing, editing or blocking LinkedIn profile updates is truly a bold, big brother move. From a practical standpoint, most compliance departments (except in rare cases like military and defense) would not approve of this level of intrusion into an employee’s private life activities (i.e. job searching). I would also imagine they would not want to ever be seen as hindering someone’s ability to get a job or to advance their career (whether this is real or perceived). This deeper level of interference is “compliance gone wild” and could have two unintended consequences of increasing the workloads for already stressed HR departments and increasing the employment liability risks of the business.”
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Author, blogger and employment attorney Donna Ballman wasn’t too surprised by the announcement. She says that employers already monitor all types of computer communications, and employees shouldn’t expect much privacy in social media. Then she offered these concrete suggestions for employees concerned about corporate monitoring of their social media activity.
- If you signed a non-compete or non-solicitation agreement, your social media will be carefully monitored once you leave. Even if you’re allowed to work for a competitor, you might have agreed not to solicit employees, customers and/or vendors of the former employer. Some employers are demanding that former employees unlink and de-friend their LinkedIn, Facebook, and other social network contacts connected with the company. And an employee who leaves and starts sending connection requests to their old client list, corporate buddies and vendors can be in a world of hurt if the company thinks they’re violating their nonsolicitation agreement. Many courts that won’t enforce noncompetes will still enforce a nonsolicitation provision, so be careful.
- Many companies have employees sign agreements saying they will keep confidential company information a secret. If you post, write a novel or tweet about the inner workings of the company, you might be accused of violating your confidentiality agreement. Also, some employers have noncompete and nonsolicitation provisions in documents called “Confidentiality Agreement.” Most people don’t read what they sign. Failing to read is no excuse. You’re likely bound by what you sign.
- There’s some issue about who owns your social media once you leave your employment. If you were hired to be the company blogger, to create a Twitter account and tweet for the company, to develop the corporate media presence, the work you did while you were employed and those social media accounts you got for the company likely belong to the employer. An exception is probably LinkedIn. They don’t allow profiles for companies – only individuals. Your LinkedIn profile is probably yours, even if the company told you to create it while on the job. Just don’t run afoul of your nonsolicitation or noncompete agreement.
- You probably don’t have any right to privacy for sites you view on your office computer. Many employers prohibit personal use of their computers and they monitor that usage. Do your LinkedIn, Facebook, and Twitter on your home computer. Before you click on a link, be sure of the source. Even if you open something from a friend without knowing its contents, if it contains pornography or something inappropriate, you can be fired for having it on a company computer.
- If you blog, or have a Facebook, MySpace, LinkedIn, Plaxo, Twitter or other social networking account, assume that your employer or a potential employer will see what you’ve written. This is not the place to post pictures of yourself doing jello shots when you’re supposed to be out sick. It’s also not the place to post Weiner-esque photos. Remember that you’ve probably linked with at least one coworker, and that person might run to the boss with your posts. Also, potential employers check out your social media before they hire you. Think before you post. Don’t put it up if you don’t want it on the front page of the company newsletter, in your personnel file or attached to your employment application.
- If your employer or potential employer finds out about a disability or genetic information by looking at your LinkedIn profile, they aren’t supposed to use it against you for hiring, promotions, or discipline. Still, be careful what you put out there in the world. If you don’t want the boss to see it, don’t post it. And for Pete’s sake, if you claim you need light duty or accommodations for a disability, don’t post photos of yourself weight lifting, running a marathon or surfing.
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Human resources expert Patrick Moraites, CFO of HR Shield, says that the rapid growth of social media has permanently altered the HR world as well as the employment screening process, adding that there are potential legal issues and other concerns related to leveraging social media sites as part of the employment screening process – and doing so is not always a benefit for employers. Employers and employees each have rights, and the off-work conduct and discrimination laws vary from state to state and are changing, he says.
Moraites is confident that more clearly defined rules and practices will evolve as a result of the popularity of social media, but expects a lag between regulation and technology.
“A lot of companies are leveraging social media today as monitoring tool and will continue to so until the guidelines are better defined. If they want to know how their organization is being represented in the community it is [an] open forum for them to review. If an employee does not want their employer or perspective employer to know the details of their personal life, utilize the privacy settings or don’t post self-incriminating pictures or comments,” he adds.
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Technology guru and author David Coursey, wondered what the long-term effect of living life in public will be on human behavior, and whether or not online mistakes have to become a kind of lifetime label. “You look at headlines like this, and you wonder if social media has turned into a suicide pact. OK, that’s a bit strong, but how long will it take for humans to adapt to a world where everything is known — or can become known — and nothing is ever forgotten?
“When will we adopt some sort of statute of limitations for stupid things done online the way bad credit information eventually falls off the report? Heck, even the IRS has to go away at some point!
“Since I don’t see humans cleaning up their behavior so that they can’t possibly upset anyone else — and why should they have to? — I think we are going to have to either develop a global ‘so what?’ attitude or force personal information to become less accessible the older it becomes. But, how do we enforce that?
“I suspect people are going to start waking up and realize we have already given too much personal information away and wondering whether ‘free’ services like Facebook and Twitter or paid ones, such as LinkedIn, are worth what they truly cost.”
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Technology and litigation attorney Shawn E. Tuma of the Texas firm Shields, Britton says he gets the issue that has people concerned because he’s personally used social media for some time, and works with many clients on their social media policies.
“I believe that most employees would see this as an intrusion into their private lives and would certainly be very upset about it. As an employee of a law firm myself, I believe that few, if any of us, would like the idea of having our employer access or monitor our personal social media accounts so my guess is that, if given the choice, we would all ‘opt out’ if that is an option.
“I do not expect to see most companies flocking to implement this new program for several reasons primarily because they will not see that the need for the program outweighs the costs of the program in terms of the (presumptive) expense of implementation, additional administrative burden of administering it, and, perhaps most importantly, the resources that will be consumed and lost productivity that will be caused by dealing with the upset employees.
“Moreover, at some point, employees will bring legal actions against the program and the cost of such litigation, especially when combined with the negative press that will stem from it, will also keep most companies from adopting such a program.
“For other companies in highly regulated industries, there could be legitimate reasons for adopting such a policy that would justify all of the burdens associated with it, especially if their employees are using social media such as LinkedIn in connection with their business activities. For example, for attorneys in Texas, our LinkedIn, Twitter, and Facebook profiles and posts can, under certain circumstances, be considered to be subject to certain rules governing attorney advertising that could get the attorney–and the law firm–into trouble. This is but one of a host of other ethical issues that are raised by attorneys using social media. For a law firm that could potentially be found liable for an employee’s inappropriate statement on her LinkedIn account, it could make the implementation of such a program more attractive than it would be for an ordinary company.
“This same principle holds true for employers in other highly regulated areas and, for those types of companies, I would not be surprised to see such a program be implemented. Nor would I be surprised to see a privacy-based legal challenge to the program that is filed shortly thereafter!”
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Attorney and author Vihar Patel says that this topic is interesting in a variety of business, employment and intellectual property law circles. “Monitoring of employee profiles can be a violation of the employee’s privacy rights. This form of monitoring is particularly invasive, because LinkedIn is a platform that is not provided by employers. LinkedIn is an outside third party service platform.
“However, as a business, employment and intellectual property law attorney, I often find myself on both sides of this issue. Small and mid-size companies often institute risk management practices to ensure that they comply with new regulations. Not just financial regulations, but a variety of advertising and solicitation regulations may also be implicated.
“After about 10 years of practice, it is clear that some sort of balancing of interests is likely going to have to occur. An employee has a legitimate privacy expectation and should be allowed to seek new forms of employment. An employer must be able to monitor employee activities, and that may subject it to liability for violating financial and advertising regulations.
“Generally, the law permits monitoring of employer provided platforms. Thus, if an employee is using an employer provided computer or Internet access, this is likely to be permitted. An employee may be well served by using personal computers or devices for engaging in LinkedIn activities.
“Another alternative is some form of randomized or reasonable suspicion based monitoring similar to drug testing may be appropriate. If an employer receives reports of improper solicitations or suspected misconduct, then an employer may monitor the employees LinkedIn activity.”
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Consumer rights and litigation attorney Charles R. Gallagher writes, “I would certainly expect that employers will embrace any mechanism that tracks social media or blog posts of their employers. However, it begs the question of where and when the posts are made, i.e. is the employee doing it during work hours using company computers or is it done in the employee’s off time. An employee must clearly answer for any post during work hours and on company computers. But lauding the local sports team for their big win after hours is less relevant to the company’s needs.
“Another concern what an employee forward or re-post. Does the company endorse the underlying website, email, picture or post? Certainly a company would not voluntarily assume liability for the unauthorized acts of its employee, but such posts might just open the door to the alternative.”
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Eric Harr, founder of Resonate Social, a social media marketing agency, summed it up this way.
“We have worked with over 50 clients in the past two years in social media – and without question, I believe companies will flock to a platform that monitors employee use of social platforms. Of all the services we provide, the ones the C-level executives get most excited about are social media policies/employee monitoring and reputation management.
“Humans, generally, want to avoid pain more than seek benefit. Most business owners see social media as an unwieldy – and expanding – Wild West. So any technology that gives them some control over things will be downright beloved!
“Employees will almost universally lament the monitoring. But, given that a single ill-conceived, ill-timed Tweet can race across humanity and burn down a brand, they need to understand how much power they have now, and how much havoc they can wreak through negative content.”
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Disclaimer: The comments included in this article are those of the individual who provided them, and do not necessarily reflect the opinion of The Distributed Marketing Blog, its editors, or sponsors. The Distributed Marketing Blog is not responsible for the accuracy, completeness, or content of the quotes, which are the property of the individual who submitted them. Nothing in this blog purports to offer legal advice, and you should consult competent legal counsel before making any decisions that could affect any legal issue such as compliance.
Want to know more about social media and compliance? Check out the resources from the recent Marketing & Compliance in a Regulated Environment webinar. You’ll find all the definitions, rules, and tools you need to comply with the regulations — without causing a revolt among your employees and agents.