What About a Morals Clause for Social Media?

USLegal.com defines a “morals clause” as “a contract or official document that prohibits certain behavior in a person’s private life.” Should your company have something like this with regard to what your employees say on social media, even when they’re posting content on their personal, non-company accounts and doing so on their own time?

Consider the following tweets collected late in the afternoon of January 6, 2015:

  • “Clients are always especially stupid their first week back.”
  • “Feels good to give $50 to a small company for something that fits my needs instead of stealing from Adobe!”
  • “My boss is such an idiot. Why is she Fwd’ing me emails that I am copied on”
  • “I have a problem with stupid client. in fact, Clients are all stupid.”
  • “I am sleeping with my boss and I don’t know why.”
  • “My boss wasn’t impressed by my Don Draper impersonation, specifically the drinking and smoking at work and the sleeping with clients.”
  • “This sounds weird but I drive better when I’m drunk. For some reason when I drink I can see better”

There are a couple of risks to your business that you need to consider if even one of your employees is posting this kind of stuff. First, there’s the risk that an employee is revealing that they’re doing something illegal, offensive or inappropriate. Yes, they may not be telling the truth because they’re attempting to be funny or they are simply trying to elicit a reaction, but not everyone will see it that way. An offensive or vulgar tweet, Facebook post, Instagram photo or some other objectionable content could trigger an investigation, such as the just launched police inquiry into a Scottish broadcaster and businesswoman who last week tweeted some offensive comments about Ebola patients.

Second, some of your clients and prospects are aware that these social media users are your employees. Whether these clients and prospects intend to or not, some will inextricably link your company with these employees, and the offensive content will reflect badly on your company. While few clients or prospects would make a decision about your company based solely on a rogue employee’s social media posts, it could be a factor that plays into their overall decision process, even if it’s simply a desire not to have to deal with an employee careless enough to post offensive content.

The bottom line is that you should at least pay attention to what your employees are saying on social media, even when it’s on their own time. Whether you can actually do anything about it through a moral clause in an employment contract or some other means is a matter for others to address.

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