Corporations shouldn’t be able to suppress employee speech

In what many are fond of calling the social media era, social media clauses are becoming routine on employment contracts, particularly with more staid, traditional firms like financial institutions. Employees may be restrictively informed that they cannot have social media accounts at all, while others are told that they aren’t permitted to talk about their work, and that they may be subject to discipline if they discuss their work on social media. This includes not just confidential matters, like personally identifying information for clients, but also general commentary — right down to the name of a company, or someone’s role with a corporation.

We are undergoing a strange generational shift. For those currently on the job market, social media presence is fraught, as companies can and do search for evidence that someone might make a bad employee. This could include photographs of people behaving badly on social media (the tales of people not offered, or fired from, jobs because of photos of drinking and engaging in other perfectly legal adult activities are endless), comments made on various platforms, or even the existence of accounts at all. Employers actively comb the internet for any evidence at all of a potential employee’s history and it can become a huge factor in hiring decisions.

This is going to change. The next generation is already growing up so immersed in social media that everyone has their sins on display, and there’s no functional way to control for it. The transition may be rough, with the next generation facing some unsettling surprises as they hit the job market, but it’s going to happen. Eventually, the people in charge of these decisions are going to be the same one with beer bongs and pro-marijuana legalisation articles on their timelines, and they’re hardly going to be hypocritical enough to nail people for having the same.

In the meantime, though, companies are obsessed with controlling employee activity on social media, which is kind of funny given that many firms have had really egregious social media slips on their own accounts. There are the thoughtless, throwaway promotional comments that attract the internet’s ire, or the infamous ‘the intern did it by accident’ tweets, the ‘I thought I was posting from my personal account’ incidents. In other words, companies struggle with social media in their official communications, reflecting the fact that many organisations are still adjusting to the fast-paced, demanding modes of communication that have become ubiquitous norms in society.

That hasn’t stopped them from cracking down on their employees, however. When people join companies, they may be officially or informally provided with social media guidelines, and not just commonsense ones — for example, if someone clearly identifies as an employee of a company, it’s reasonable to take steps to make it clear that actions on social media are independent and that person doesn’t speak for the company. Likewise, those in key positions might want to exercise caution on their public accounts to avoid angering the public or creating accusations of discrimination and other issues further on down the line — the HR executive who makes racist comments, for example, could be setting a company up for a lawsuit if the firm doesn’t demonstrate equitable hiring practices.

Yet, this is also a limitation of free speech. Numerous employees are forced underground on social media — it’s not that they don’t talk about their jobs, but that they do so in controlled ways. Some resort to anonymous accounts, keeping the details of their work vague. It’s ‘a publishing intern’ at ‘a major house,’ providing just enough detail to entertain readers but not enough to potentially sink an internship — and a career. People may talk vaguely about being flight attendants or pilots, bankers or mortgage officers, without providing explicit details that might out them to their employers.

Others do comment under their own names, but they may dissociate their names from their work. Jane Doe might say she works for a major airline, but she doesn’t say which one, doesn’t post photographs of her uniform or the aircraft she works on, and is careful to obscure other details of her job. This can be dangerous, as the airline might still penalise her — and in fact probably will, because most airlines don’t allow their flight crews to discuss their work — but it provides a layer of protection.

Some talk on private forums and on locked accounts, hoping to get around social media restrictions by hiding in plain sight. It’s a tool that’s also used for organising, allowing people to connect across huge networks without making their work obvious. Thus, employees of a single large firm who couldn’t get together in any other context can talk via a forum and make proposals for labor organizing and other actions.

But fundamentally, all of these things sidestep a larger issue: Employers should not be allowed to tell their employees what they can and can’t do outside the workplace. If someone wants to write about a job, that person should be able to do so without fear of reprisal, even if employers don’t like what individuals have to say about their work. When people are off the clock, and speaking for themselves rather than for their employers, what they do and don’t do isn’t the business of HR or anyone else.

It’s disturbing to see restrictive social media contracts enduring despite the fact that they constitute a fundamental suppression of speech. People shouldn’t have to choose between having jobs and being able to speak their minds, especially since open communication and whistleblowing are keys to reform.

Image: Flight attendants, Miki Yoshihito, Flickr