After the LIMRA Social Media Conference in Cambridge, MA a few weeks ago, one of the attendees who downloaded the presentation deck used for the Customer Service Meets Social Media panel posted this question:

“One of the points made in this panel is that front-line employees are often recorded (audio and video) and the results can be posted on social media sites immediately. How do I stop people from doing that? I could be held liable if one of my employees is photographed or videotaped without their permission.”

In following up with the person who drafted the question, we found that they were specifically thinking of an example used in the presentation where an airline employee followed company policy and charged soldiers returning from Afghanistan an excess baggage fee although their commander had (mistakenly) told them that they could bring four bags without paying an extra fee.  In that case one of the soldiers posted a video about the situation while he was onboard the airplane, and he did NOT include either audio or video of the airline employee.

There have been other cases where customers have posted audio or video of customer service employees – including at least one where the customer service person is shown asking the customer to stop videotaping.  It was that situation that concerned the questioner (who asked that his name and company not be used for this article).  It’s now so common on YouTube, Twitter, Facebook, Yelp, and Google+ that a search will turn up hundreds of new postings almost every day.

It was such an interesting question that we posed it to both legal and social media experts.  Here are their replies.

David Coursey, co-author of Slimed Online: How to Get Your Reputation Back in Spite of Google, wrote in the book that:

“The first step in determining whether or not a recording can be legally posted or shared is to understand the rules in your home state.  Federal laws require that one party to the conversation know that a conversation is being recorded, but 12 states require the consent of all parties to a recorded conversation. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

“Some states have rules that allow recording in certain places (such as a public street, airport terminal or restaurant where people have no expectation of privacy), and different rules for recordings in other places (such as a private office or home, where people do have an expectation of privacy).

“The Reporter’s Committee for the Freedom of the Press has a state-by-state guide to laws pertaining to the video and audio taping of conversations.”

Attorney Bill Nolan, of Barnes & Thornburg LLP, confirms that the wiretap laws Coursey referenced do apply in this situation, noting that a trickier question is what happens when an employee asks a customer NOT to record an interaction.

“If the employee asks the customer to stop and the customer does not, but the employee feels he/she must continue the transaction, has the employee consented for purposes of those laws in two-party consent states? You could argue that both ways and I suspect courts would go different ways on that question depending on the situation.

“It seems that if the customer did not stop, the customer could have committed a civil assault, defined as follows:  ‘In common law, assault is the tort of acting intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact.’ (from Wikipedia)

Nolan says that he hasn’t specifically researched this, and civil assault is not a common claim, but perhaps this would be considered “offensive contact.”  In layman’s terms, this means that no one has won a lawsuit on this topic – but they could.

Anticipating and preparing for such a situation is just good business, Nolan adds. “I do think it’s important for employers with customer service employees to anticipate and address this situation. Nothing is gained by having an employee embarrassed, both for the obvious employee relations reasons, but also because employees who feel they have been mistreated may bring other claims such as discrimination if they feel they were somewhat singled out.”

Best practices suggested by the lawyer include:

• Train employees on dealing with these situations. Provide them a script of what to say to such a customer.
• Authorize employees to terminate transactions with customers who refuse a polite request to stop recording.
• Issue name tags with just first names on them.  (This seems to be the common practice anyway.)

Employment law expert Mark Downey, a partner at Texas law firm Munsch Hardt Kopf & Harr notes that one part of the question – whether it’s legal to post a recording of a customer service interaction on a social media site – depends on whether or not it was legal to make the recording in the first place. “In states where it would be illegal to make the recording, a person that does so and posts it on the internet, could be subject to a claim for invasion of privacy,” Downey notes.

“As for an employer’s liability, absent a complaint to the employer and the employer’s failure to take steps to stop any such recording, the employer’s risk is minimal. If, however, the employer does get a complaint and does not respond, or the posting is made on the employer’s computer/servers, there could be a liability risk to the employer.”

Downey says that the law really has not caught up with the technology here. Asked whether the same recording laws apply to video and audio recordings and other forms of electronic communication such as Skype and online chat, he says, “Like many other situations where this has happened, however, analogies are often drawn within the law. Accordingly, until there is further development of the law it is likely that the general wiretap laws will apply to Skype. As for online chat logs, the wiretap laws have been applied and much of the determination is going to be based on whether the equipment being used to chat is owned by an individual or an employer.”

For those who use social media sites to vent about their interactions with customer service personnel, Downey adds this caution.  “It is also likely that the laws regarding defamation would apply. Therefore, if someone posts a knowingly false statement that could cause the customer service representative damages (i.e. lose their job) then the person doing the posting could have an issue. If the person making the posting is holding themselves out as an associate of a particular organization and/or company, then the organization/company could also be at risk of liability.”

Best Practices Tips for Companies

• Draft a computer and Internet use policy that is communicated to employees and enforced.
• Get employees to sign an acknowledgement that they have received a copy of the policy, and completed training.
• Include language that informs employees that they don’t have a reasonable right to privacy in on-the-job communications with customers and co-workers, or when using company computers, servers, or other property (mobile phones).
• If you monitor email and social media interactions, record in-bound and out-bound phone calls, or have surveillance cameras in your buildings, make sure that employees and customers are informed about these policies.

Coursey adds that it often boils down to being careful who you hire in the first place, and making sure that they are trained in how to handle hostile or negative situations with unhappy customers.  “And if you do take action against an employee after something is posted in social media, make sure that you’ve done your homework.  Was the tape altered or edited to make them look bad or take something out of context?  Did they follow your written policies?  Was what they said protected speech under the broad view taken by the National Labor Relations Board?  Find out all those things before you take action.”