An employer’s guide to potential problems

Social media. All those irresistible Internet-based time vampires that allow everyday people to interact with a vast universe of friends and strangers in nearly infinite ways, personal and professional, important and trivial, worthwhile and worthless.  Facebook. Twitter. LinkedIn. The blogosphere (yes, including – but never never limited to – CommLawBlog.com). Wiki. YouTube. And so on, and so on, and scooby dooby dooby.

So you’re a businessperson, and your employees have company computers, and maybe even company phones, with Internet access. Do you let them use social media on your time and gear? Should you?

Pop quiz to help answer the first question: How many of your employees do you think are looking at their Facebook pages right now?  Good guess. Now walk down the hallways and see if you can catch any of them in the act. Go ahead, we’ll wait. We expect that, unless your guess was “probably all of them”, you were way off. Because they’re doing it – if not Facebook, then some other kindred site. You know it, even if you don’t like it or want to admit it.

The deal is that, like it or not, your employees are social networking in some form. They may be doing it at home. They may be doing it at work. They may be doing it for work. No matter how, where or why, you and your business are at risk when your personnel and equipment are used for non-business activities on-line.

That brings us to the Big Question: what are you going to do about it?

The answer clearly has to be “something”. “How much” depends on several factors, including your type of business, your desired business environment, and whether you actively employ social networking as part of your business development and operations.  

At an unrealistic extreme, of course, you could try to ban social media use at work altogether – if you really relish creating considerable disgruntlement on the part of your staff while undertaking herculean (and likely impossible) enforcement efforts. 

A more realistic approach is to promote and enforce responsible use.  That’s where we come in. 

If you don’t have strong policies relating to social media as part of your employee code of conduct or employee handbook, you’re opening yourself up to potential liability from a wide variety of possible scenarios. We can help prepare policies governing your employees’ use of social media as it affects, or could affect, your business. 

Such policies can take many forms. They can be additions to existing employee handbooks or codes of conduct. Alternatively, they can comprise an entirely new stand-alone set of supplemental rules specifically applicable to social media use.

However you choose to impose them, a primary goal of such rules is to put you in a position to effectively punish violations through various measures – up to and including termination of the employee in extreme circumstances.  But while enforcement is a key element, it is important to recognize that social media are a part of the current cultural landscape, in and out of the office. As a result, the tone, content and prohibitions of this code of conduct can influence not only your employees’ views of you, but also the world’s view of your business.  So even though, as an employer, you have every right to tell your employees that use of social media on company time is verboten, do you really need, or want, to be that extreme? After all, a happy employee is a productive employee, right? While loss of productivity is a key concern, a quick Facebook break between projects can often be more helpful than harmful. Shoot, I’ve checked my Facebook page and updated my status twice since I started this article . . . .

But quick breaks become long breaks and long breaks become complete time-sucks before you know it. How can you regulate such use to prevent the occasional trickle from becoming a flood?

Or suppose that, during one of those breaks, an employee uses a company computer to post something somewhere which exposes you to legal liability – defamation, maybe, or copyright/trademark infringement. Worse yet, that employee is – or at least seems to be – speaking for the company because you told him or her to do so as a means of promoting your company, its products or its services. Before you know it, you’re being sued. 

While it’s impossible to protect against every imaginable problem, a good policy will be designed to:

Define the allowable use of social media on company time or from company equipment. To what extent, if any, is it allowed? If your business is actively using social media to promote itself, who is allowed to speak for the company through these media, who is overseeing those people, and what are the prescribed processes? How do you respond to requests for information received through social media? What procedures are in place to vet official company statements? 

Minimize the likelihood that employee statements are imputed to the company.   Due to the prevalence of social media, Internet postings now have the real world impact of a face-to-face statement.  Even if an employee is not officially speaking for the company, he or she may be identifiable as a company employee and that could cause big problems for you in several areas, including:

  • Harassment, sexual or otherwise, (a) of one employee by another, or worse yet, (b) of a subordinate by a supervisor. Remember – innocent banter can turn into real harassment pretty quickly, especially in the two-dimensional/written word world of the Internet, where an effective Sarcasm Detection Filter has still not been developed. 
  • Liability for unauthorized disclosure of trade secrets, confidential or other proprietary information.
  • Defamation, invasion of privacy or other reputational torts.
  • Copyright or Trademark Infringement. 
  • Violations of the FTC’s new guidelines concerning testimonials.

Protect your company’s brand or image and relationships with affiliates, clients and adversaries against harm generated through employee statements on the web. At the very least, you need a general “good judgment provision”. But you may want, or need, to go further, reminding employees that, when they speak publicly, they should not do so in a way that disparages your company, its trademarks or brand names (by, e.g., publicly venting internal problems or frustrations).  You may also want to encourage them to keep their personal politics, religious views, and other proclivities or interests out of the online workplace, just as they do in the physical workspace (especially those photos you or friends have posted to Facebook).  Ditto for statements about customers, clients competitors, and the like. (Which reminds us – Employees should also notify superiors if they see disparaging statements about the company, whether of internal or external origin.)

Remind your employees that their use of company equipment comes with a diminished expectation of privacy.  You have the right to review every piece of information that travels across your computer system. You don’t need their permission to do it.  

Both apply to current employees and explicitly survive termination of the employee-employer relationship, especially with regard to disparaging or damaging statements (which may require a social media-specific confidentiality provision in your separation agreements). 

Sensitize employees to the problems which can arise from providing on-line recommendations for current or former coworkers in, e.g., their LinkedIn profiles. Employees need to realize that, even when such comments amount to just a quick line or two, such shout-outs can be deemed formal statements. Does that carry the weight of a formal letter of recommendation? Probably not. Could it carry the imprimatur of an official company statement? Perhaps. The temptation to make a negative statement about a former employee should definitely be resisted, as it can lead to allegations of wrongful termination or intentional interference with prospective business contracts (not to mention defamation).

Guide your hiring policies and procedures. Companies increasingly mine the Internet for information about potential hires and their character. It can be very useful, but it can also expose you to lawsuits if it can be shown that you used social media to discriminate against a particular person on a “protected class” basis, such as race, age, religion, sexual orientation, etc. We can show you how to create a system for reviewing social media that allows you to maximize your knowledge but minimize your liability.

Again, these are just some of the major issues you’re facing in this brave new world. There are many ways to attack them. We’re happy to work with you in planning and implementing that attack. Apart from drafting or redrafting employee handbooks or codes of conduct, we can help create an enforcement plan and supplement your efforts with in-house seminars or Internet-based webinars to explain to employees and bosses alike the ways in which social media, even unintentionally, can endanger your business.

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