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The transparency of social media that was initially hailed by many communicators as creating a brave new world of open and honest communication is beginning to raise some legitimate concerns. Some are not surprised. In fact, communication has always been subject to misuse and abuse. Just ask any of the many celebrities who have sued the National Enquirer over the years. The Internet doesn’t create the problems, but it does escalate them.
Mitchell Langberg is a litigation attorney with extensive experience in defamation law; he is a shareholder with Brownstein Hyatt Farber Schreck and based in the firm’s Las Vegas office. Social media use, says Langberg, “in the world of law is still the Wild West.” While the same rules apply that have always applied, for some reason there seems to be a tendency for online communication to be much less formal and for online communicators to be much less concerned about the potential impact their viral messages may have.
Defamation: What Is It?
“The law of defamation is pretty much the same regardless of what the statement was made in a telephone call, written in a letter, sent in an e-mail or posted somewhere,” said Damon Dunn, a partner in the Chicago law firm of Funkhouser Vegosen Liebman and Dunn Ltd. But, he added: “People do write things in e-mails and on Twitter and on Facebook that they normally would not commit to business correspondence.”
Why? “I wish I knew the answer,” said Danielle Urban, a partner with Fisher & Phillips in the firm’s Denver office. “One of the theories I have is that the nature of (online communication) is so immediate that we often don’t take time to think before we send or post. I think where people get into trouble is where they react in haste or write or post in anger or at a time when emotions are running high.”
If what they said is negative but true, those statements probably are not defamatory, but they still could lead to problems. “Strictly speaking, to make out a claim for defamation you have to say something that not only is defamatory—so it hurts someone in terms of their reputation—but it also has to be untrue,” said Urban. While states have different laws related to defamation, she said, “overall, truth is an absolute defense.”
Nevertheless, having such a defense doesn’t mean that the individual who is accused of defamation won’t incur legal fees to make that point. “It can cost you a lot of money to get to a point where you can vindicate yourself and you’re probably going to have to settle,” said Urban. In addition to potential costs, the HR consultant’s image or reputation can be hurt by the things he or she said online.
“I think you always have to keep in mind what your end goal is,” said Urban. “This is business. It’s your professional reputation.”
Dunn agrees that HR consultants should be alert to the signals that they send as they communicate and post information online. “The Web is a somewhat spontaneous environment,” he pointed out. “I think they should recognize that and treat all of their interactions as if they were formal business correspondence. My typical advice is: ‘Don’t put anything there that you wouldn’t want to see on the front page of the newspaper.’ ”
But what about when the shoe is on the other foot and the HR consultant believes that he or she has been defamed?
When You’ve Been Defamed
You’re participating in a LinkedIn forum and come across a thread where your firm is mentioned—and not in very flattering terms. Quite a discussion has ensued, and you have no doubt that the discussion is damaging to your reputation. What should you do?
The first step, said Urban, is to contact the other person. Reach out and ask the person to take down their post or retract whatever it is that they have said. If they refuse, the next step is to send them a letter—generally referred to as a “cease and desist” letter—asking them to refrain from making additional comments and to take down their posts and retract their statements. The final step is to threaten legal action. But, she said: “I don’t think coming out of the gates with legal action is a good idea; you want to keep that in your back pocket.”
Taking some form of action is important, not only in an attempt to stop or remedy the situation, but also as a signal to the courts (should the issue rise to that level) that you have attempted to resolve the matter yourself to no avail.
There are some important proactive steps that HR consultants can take. The first step, said Langberg, is creating a highly visible and professional presence on the Internet. “You need to make sure you have a positive image on the Internet that is strong enough to overwhelm any negative communication out there,” he said. That strong presence comes into play when negative information begins surfacing.
For example, an HR consultant with a high-quality website that contains client testimonials, links to articles and presentations, and other evidence of the consultant’s character and credibility can serve as an important source of information for a potential client who might have read something negative about the consultant in an online forum and then does a web search to see what other information might be available. The more extensive that other information, the more effectively it can counterbalance negative—and especially anonymous—online commentary, said Langberg.
In addition, HR consultants should monitor the online environment and be prepared to respond directly, immediately and proactively if negative information is found. “You need a contingency plan in place where you’re going to do counter-marketing and use the fact that your name is out there to spin the message in a different direction,” said Langberg. “They’ve opened the door to attention; how are you going to redirect that attention?
Lin Grensing-Pophal, SPHR, is a Wisconsin-based business journalist with HR consulting experience in employee communication, training and management issues.
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