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How Should Employers Respond To Social Media In The Workplace?

Virtual Networking:

According to some major news articles, the reign of e-mail as a primary tool for communication is coming to a close. This does not mean e-mail will no longer have a place in many people’s daily lives, but rather that its use will be minimized as new generations of communicators strive for instant feedback.

The Nielsen Company conducted a study that found that as of August, 276.9 million people used e-mail across the U.S. and other major countries. In contrast, the number of users on social networking sites was 301.5 million. What is staggering is that social media sites such as Facebook and Twitter have only been in existence for about five years or less. What does this mean for employers?

Currently, there are three major responses by employers regarding employee (and their own) use of social media. The first response is to completely ignore social media and deal with issues if and when they arise. In fact, according to Russell Herder and Ethos Business Law, more than one in three businesses have no policies concerning the use of social media sites in the workplace. The second response is to completely ban social media and even block social media sites so there is no potential for use. As of July 2009, the American Management Association found that approximately 71 percent of IT departments are blocking users from social networking. The third response is to allow employee use of social media within a defined setting.

While trying to weigh how to respond and considering the potential risks, such as security issues and low productivity, it is important for employers to consider that studies show that, although 61 percent of all employees access their Facebook profile at work, this may be a phenomenon to embrace. It is no secret that the delineation between work time and home time has blurred with the use of laptops and cell phones.

In August, the University of Melbourne reported the results of a study that showed people who use the Internet for personal reasons at work are about 9 percent more productive than those who do not. One possible theory according to Brent Colker, the Melbourne study author, was that “short and unobtrusive breaks, such as a quick surf of the Internet, enables the mind to rest itself, leading to a higher total net concentration for a day’s work, and as a result, increased productivity.”

Given these dynamics, most employers will want to choose the third approach and opt for a social media policy that will provide active social media users in the workplace with defined parameters. Much like Internet-use policies, the employer will want to advise its employees on the proper professional etiquette of social media while protecting its own interests. To do this, the employer should be mindful to consider the following when drafting its policy:

  • Encourage employees to use good judgment: Don’t write anything you wouldn’t say in person.
  • Advise them on how to preserve confidentiality and intellectual property: Do not disclose customer or proprietary information.
  • Require employees to disclose any work-related blogging to their supervisor: An employee should use a disclaimer on his blog clarifying where he works and that the opinions and views expressed are not necessarily those of the employer.
  • Mandate that social media use not interfere with getting the job done and that computer use will be monitored appropriately: Always stay productive.
  • Provide a reminder or training regarding the ethics code of the business or given profession: Respect copyright and fair use and do not risk harassment, discrimination or defamation.
  • Encourage employees to be courteous social media community members: Pay heed to mutuality, authenticity and timeliness; these concepts have special meaning in the social media sphere.
  • Clarify the place of social media within the overall business goals and communication plan: Workplace social media use should follow the employer’s goals.

As employers venture into this brave new world, they should be mindful that any policy implemented should work consistently with any Internet-use policy or disciplinary policy already in place.In addition, some employers may need to consider drafting more than one policy — one for hourly and one for salaried employees due to wage hour laws. Also, employers should remain aware of other legal issues that may arise, such as free speech rights and potential litigation and discovery issues. As such, it is always prudent for employers to have legal counsel review such a policy before it is implemented.

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Lew Clark

About Lew Clark

Lew Clark is a partner in the Phoenix office of Squire, Sanders & Dempsey, www.ssd.com. Lew concentrates his practice on counseling and advocacy for both private and public sector employers in all types of labor and employment matters and is an experienced mediator of employment and other civil litigation matters. Mr. Clark is a trial lawyer who represents employers in a broad range of employment litigation and administrative matters throughout the United States that involve such issues as discrimination, harassment, retaliation, wage and hour law, employment at will, employee benefits, employment contracts, defamation, employment intentional torts, wrongful discharge, unfair competition, trade secrets and unfair labor practices. He also regularly represents both private and public sector employers in arbitrations relating to grievances under collective bargaining agreements. Mr. Clark counsels employers on compliance with all federal and state labor and employment laws such as discrimination laws, the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), Worker Adjustment and Retraining Notification Act (WARN), Equal Pay Act, National Labor Relations Act (NLRA), whistleblower retaliation provisions of the Sarbanes-Oxley Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). He counsels employers on workplace harassment, workplace violence, terminations, mass layoffs, union avoidance, unfair labor practices, drug and alcohol testing, employment practices liability insurance, employee handbooks and policies, noncompetition agreements and executive employment agreements. He regularly collaborates with the firm’s corporate lawyers, counseling clients on employment and traditional labor law issues that arise amidst mergers, acquisitions, bankruptcies, restructurings, reductions in force and reorganizations. Specialties:Mr. Clark counsels employers on compliance with all federal and state labor and employment laws such as discrimination laws, the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), Worker Adjustment and Retraining Notification Act (WARN), Equal Pay Act, National Labor Relations Act (NLRA), whistleblower retaliation provisions of the Sarbanes-Oxley Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA).