Drafting and implementing a social media policy should be a “to do” priority for any modern business seeking to protect its sensitive information and minimize risk and liability.
Today’s reality is anyone in your company can be an instant global publisher. Consider the numbers; Facebook is the world’s third largest “community” by population with over 400 million users. Twitter, and the like, creates a vastly larger web of global interconnectivity. Privacy and security settings vary so significantly that for all practical purposes any information posted through social media has no guarantee of privacy.
Disparaging and derogatory comments about co-workers can give rise to discrimination, harassment, hostile work environment and retaliation claims. Fraternizing between supervisors and employees on social media sites can create similar problems where the supervisor “friends” some employees but not others. Text messaging unwanted sexual advances to co-workers has become such a problem in recent years that a new phrase “textual harassment” has been coined to describe it. Ranting about one’s “bad day at work” or railing against a particular supervisor or company policy can create a myriad of public relations headaches and negative media attention. Off-hand comments about research, development or the status of projects, deals or business relationships can result in compromised trade secrets, damaged relationships and loss of competitive advantage. Whether malicious or simply careless, posting sensitive information can be costly.
Using social media to screen prospective employees or monitor current employee activity can also subject an employer to liability. Federal law protects employees from discrimination on the basis of sex, race, disability, marital status, religion and national origin and all of those traits are often posted in the “profile” section on most social media sites. Accessing an employee’s password protected social media sites may violate federal and state wiretapping and privacy laws or the Stored Communications Act. Carefully documenting the non-discriminatory basis for employment related decision making is particularly important when any employer relies, in part, on social media profiles for information.
Similarly, employers may not interfere with, restrain or coerce workers’ organizing efforts under the National Labor Relations Act (NLRA). Monitoring, tracking and documenting on or off-duty conduct that meets the fairly broad definition of “protected activity” under the NLRA can result in federal investigations, fines and litigation. Monitoring or investigating employee blogs or social networking sites discussing salary, benefits, union representation or other terms and conditions of employment is not prohibited, but using that information to influence an employee’s decision on those issues may violate the NLRA. Employers must be particularly cautious in these tricky areas.
Employers should reasonably expect that the scope of these problems and the law governing these issues will continue to evolve in the coming years. However, to manage and mitigate these risks in the meantime, employers should create a detailed social media policy and conduct regular training to ensure that policy is understood and properly implemented at all levels. The following are some suggestions for the basic framework of a social media policy.
– Advise all employees that social media activities are subject to all company policies, including those designed to protect company information and prevent discrimination and harassment.
– Prohibit employees from using the company name, logo and trademarks or making any communication for or on behalf of the company, including posting pictures of coworkers or company events without prior authorization.
– Prohibit disclosure of any information regarding company trade secrets, business relationships, projects or internal affairs.
– Advise all employees that information posted on social media sites may be widely disseminated and is unlikely to remain private, despite their privacy settings and that they should conduct themselves accordingly.
– Advise that violation of company policies, including the social media policy, may be grounds for discipline up to and including termination.
Even a good written policy is only as effective as the training given to implement that policy. Many employees simply may not appreciate the pitfalls described above or recognize the role they might play with respect to creating liabilities and causing significant business problems. Savvy businesses are creating sensitivity to these issues with specific written policies and supplemental training to educate staff and mitigate these risks.
Whitney J. Selert, Of Counsel, Fisher & Phillips, LLP