Adopting and enforcing clear digital use policies reduces your
brokerage’s potential liability. By G.M. Filisko
Odds are that some of your sales associates are online at this very moment. Maybe they’re updating
their Facebook status. Or uploading a blog post. Or
retooling their Web site.
But what if they’re doing something that creates
liability for your brokerage? Brokers are right to be
concerned about the online presence of their agents.
It's up to you to develop a policy for your o;ce that
details online activities that are acceptable and unacceptable from a business standpoint—and to make
sure associates know they’re accountable.
Policy? What Policy?
If you haven’t already created guidelines for your associates’ online behavior, you’re in good company.
“I’d say that 5 percent of brokers, at most, have
policies,” estimates Nobu Hata, Chicago-based director of digital engagement at the N;;;;;;; A;;;-
;;;;;;; ;; R;;;;;;;®. “Most policies I’ve seen have
been at larger brokerages. They have counsel who’ve
recommended they enact a policy, or they have a big
enough cadre of sales associates that someone’s already gotten them in trouble.”
It’s not that brokers aren’t paying attention to
the risks, Hata says. Many are. But they don’t want
to tighten the reins so much that sales associates
balk—and end up leaving. But, as any defense attorney will tell you, a written policy is wise. “Every broker should have one, whether the broker has two or
200 salespeople,” Hata says. “Sales associates do a lot
of things online on behalf of their brokers, whether
it’s marketing listings or performing client care, and
there’s so much gray area.” A written policy reduces
the chance for misunderstandings.
Independence Has Limits
There’s another reason brokers hesitate to create
guidelines, and that’s the independent contractor
status of the overwhelming majority of salespeople.
That shouldn’t hold you back.
“Independent contractor status isn’t really an
issue,” says Michael Thiel, associate counsel at NAR.
“Brokers have the responsibility for the conduct and
business operations of their licensees notwithstand-
ing the fact that they’re independent contractors.
Brokers can enact policies they consider reasonable
based on the risks they believe they face.”
That extends to associates’ behavior on their own
devices. “You’re within your rights if you’re govern-
ing sales associates’ business activities, not their de-
vice used to conduct business,” says Bruce H. Aydt,
;;;, ;;;, senior vice president and general counsel
at Prudential Alliance, R;;;;;;;®, in St. Louis. “A
good example is a blog. Our company has a policy
that salespeople must comply
with Missouri Real Estate Com-
mission rules, our company
policies, and NAR’s Code of
Ethics regardless of how they
create or access their blog or
e-mail messages. We think we
have every right to say, ‘If you’re
doing something that’s business-
related, we’re responsible, and
you have to follow our policies.’”
There are two main issues
you should consider. The first
is confidentiality. “Client
confidentiality is certainly
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Unacceptable! What to Consider Banning
Are there online activities you should absolutely, positively prohibit salespeople
from engaging in? The NAR guide “Use of Social Media in the Real Estate Business”
recommends prohibiting the use of brokerage resources for the following activities:
b Chain mail
b Malicious e-mail
b Business unrelated to the brokerage
b Any other illegal use