How to guide – Employee use of social media

In order to stay ahead of competitors and keep up with methods of communicating with customers, it is imperative that restaurants look to modern technological advances to maintain and foster business. The Internet has provided many opportunities for business owners, yet few as simultaneously beneficial and precarious as those posed by social media websites.

Business owners now possess the unprecedented ability to reach out directly to their customers or prospective customers through an interactive interface which essentially creates a dialogue with the greater public. The allure and potential of these forms of media as marketing tools among restaurants is clearly top of mind.

But what sort of policies and procedures can you put into place to ensure that your employees are using your corporate social media profile to benefit the restaurant and not to any detriment of your business? And what about those employees’ personal social media profiles, where they may disparage the brand publicly or post content that compromises your restaurant’s goodwill by association?

If you do allow your employees to operate your restaurant’s social media profiles, it is important that you develop a social media policy to govern these employees’ conduct. Included in the social media policy, restaurant owners and their lawyers should include some or all of the following provisions in order to grant the restaurant owner special controls to ensure that only approved content is released on these websites.  A well drafted Internet and social media policy can greatly protect the restaurant’s interests and shape the way its employees use these forms of media while at work.

In fact, your employees may be held accountable even for postings that take place on personal forums outside of working hours. Generally, an employee owes a duty of good faith and loyalty to their employers. This prevents employees from acting to the detriment of their employer. In Canada, the legal test of good faith in the employment context requires the employer to show that the employee’s off-duty conduct harmed the employer’s reputation or product. If it is found that such conduct has caused such harm or has rendered the employee’s employment with the company untenable, then action against the employee may be taken.

It is imperative that an employee social media policy contain sufficiently strong language with respect to confidentiality in order to protect the restaurant’s confidential information, trade secrets and other internal or proprietary information. You may consider limiting which employees can access certain types of information.

Furthermore, you may want to educate your employees on the dangers of online disclosures, direct and inadvertent. This is a particular concern for publicly traded companies which can face serious regulatory penalties for non-compliant disclosure of certain information, not to mention the impact this may have on the share value. The duty to maintain confidentiality is one that transcends the regular workday.

Restaurant owners must also realize that the conduct of their employees on these social media outlets may have an effect on the reputation of the brand. A policy must include language that restricts a certain type of behaviour while not infringing on freedom of speech and expression rights. Restaurant owners that seek to terminate employees for online conduct whether during or outside working hours can only do so if three criteria are satisfied:

1. The conduct must have caused serious damage to the employment relationship.
2. The conduct must have caused damage to the employer’s interests.
3. The conduct had to have been incompatible with the employee’s duties as an employee.

Many employees spend a large portion of their workdays on social media, which can cut into their productivity. Further, the more time an individual spends on social networking, the greater the chance that an online misconduct can occur.

Restaurant owners should develop policies and monitoring systems that restrict the amount of time that employees are engaged in these types of activities. The more realistic policy would be to permit the reasonable personal use of these media in the workplace.

This is only a broad sample of some of the elements which you should consider for your restaurant’s social media policy. As policies will vary by each business’s marketing strategies, there is no one-size-fits-all social media policy which can be provided.  Accordingly, make sure that you work with your legal advisors to draft and enforce a social media policy that works for you.

 

By Chad Finkelstein, franchise lawyer at Dale & Lessmann LLP

October 3, 2011