Tag Archives: social media series

Social Media Policy

Social Media Series: Employers Should Consider Creating Their Own Social Media Policy

 

This article is part of an on-going, social media series.


According to a recent ethics and workplace survey by Deloitte, social networking sites are a part of everyday life for employees, with 66 percent acknowledging that they visit sites such as Facebook, MySpace, LinkedIn, Plaxo, Twitter, YouTube, and Flickr at least once a week. Although an employee’s use of these sites may appear on its face to be a personal activity in which the employer should not interfere, the reality is that an employee’s private use of such sites may have consequences that impact their employer.

Is an employee who engages in social networking for personal reasons at work being productive for her employer? Is an employee’s personal rant about his employer on his Facebook page placing his employer’s public reputation at risk?  Is an employee’s personal post on a social media site regarding a client business meeting placing her employer at risk for disclosure of confidential, proprietary or trade secret information?

Notwithstanding the expanding gray area between an employee’s private use of social networking sites and an employer’s professional consequences, only 22 percent of employers have a policy in place to control their employees’ use of social media.

So what should employers do? While there is no bulletproof protection for employers, they can help to avoid or mitigate some legal and ethical consequences by establishing an appropriate social media policy that fits their unique culture. Employers would certainly be wise not to simply copy a social media policy off the Internet. The policy for a small employer may be different than that of a large employer. The policy for a school may be different than that for a for-profit business. For example, a policy for a school may prohibit staff is from “friending” students, while a for-profit business may encourage staff to engage with clients and potential clients through social media as a form of professional networking — albeit with guidelines concerning proprietary and confidential information in place. On a general level, almost all employers should consider the same common factors when developing a policy.

·      First, may the organization’s employees engage in social media for personal reasons at work and, if so, are there any limits and how will the employer enforce such restrictions?

·      Second, given that an employee can tarnish an employer’s positive public reputation through social media activity, the employer should consider guidelines for employees’ use of social networking sites. Similarly, the policy should address whether an employee is permitted to identify himself as a representative of the organization when expressing his personal opinions about the company, and whether the employee should include a disclaimer in his personal blogs and posts that the opinions expressed are solely his own.

·      Third, given the liability that can result from an employee’s unscrupulous use of social media, the employer should remind employees of all other policies that may be implicated by one’s online activity, such as the anti-harassment policy, anti-discrimination policy and the confidentiality policy.

Underlying any social media rules for the office should be a policy about the employer’s intention to monitor employees’ use of electronic communications at work. If employees acknowledge that nothing they do on their work computers is private, the employer has likely already gone a long way toward nipping in the bud inappropriate use of social media at the office.

Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.

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Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Banning Social Media

Social Media Series: Prohibiting Employees’ Use Of Social Media At Work

This article is part of an on-going, social media series.


Because the law still is evolving, many employers are fearful of disciplining and terminating their employees for conduct on social networking sites. While this apprehension is understandable, it need not paralyze employers from protecting their legitimate business interests with an appropriate social networking policy.

Recently, the National Labor Relations Board (NLRB) filed an unfair labor practice charge against American Medical Response of Connecticut for terminating an employee who posted insulting personal remarks about her supervisor on her Facebook page.  Although the parties settled the charge before the hearing, the NLRB has made it clear that it intends to aggressively prosecute employers that discipline employees for this type of behavior. Because the NLRB’s authority reaches both unionized and non-unionized employers, the potential ramifications to employers is widespread.

While there is still plenty of gray area regarding what type of online behavior an employer can prohibit, there is certain employee conduct that employers can forbid in order to protect themselves against unscrupulous employee activity on social networking sites. There are common circumstances of an employee’s online activity that generally remain lawful grounds for discipline.

The clearest circumstance is an employee’s use of social media while on the clock. An employee who engages in online activity for personal reasons at work likely is failing to be productive for the employer, and such conduct may lead to discipline up to and including termination. If the employer intends to prohibit personal use of social media while an employee is on the job, the employer should: (1) implement and distribute a written policy that prohibits personal social networking while at work or while working; (2) ensure that it enforces this policy consistently with all employees so as to avoid claims of discrimination; and (3) have documentation to support the employer’s belief that the employee engaged in such misbehavior at work. If an employee’s job responsibilities require him to be online, the employer should consider appropriate measures, such as whether to block access to social media sites.

Another clear circumstance where an employer can discipline employees for their use of social media is when the employer’s confidential and proprietary information is disclosed through the employee’s social network, regardless of whether such online activity takes place outside of the office and outside of work hours.

So that the employee is clear about how he may, if at all, discuss work through social media, the employer should take some basic precautions: (1) have the employee execute an enforceable contract that prohibits the employee’s use of or disclosure of confidential and proprietary information; (2) require all similarly situated employees to execute the same contract; (3) enforce the breaches of such a contract consistently with all employees who have executed it so as to avoid claims of discrimination; and (4) have evidence to support the employer’s belief that the employee engaged in such misbehavior at work.

While there are clearly social networking activities that an employer can prohibit, it must be careful not to cross the line. Under the National Labor Relations Act, employees are entitled to engage in “protected concerted activities,” which include discussing the terms and conditions of their work between two or more employees. An overly broad social networking policy may violate the act if it interferes with employees’ right to engage in such protected activity.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media as evidence

Social Media Series: Using Social Media As Evidence In Lawsuits

This article is part of an on-going, social media series.


When litigating against a former employee, the Internet can lead to an evidentiary goldmine for an employer. A former employee’s social media activity may provide evidence of the employee’s breaches, such as a violation of a non-competition provision or breach of confidentiality.

Courts have addressed the litigation strategy of discovering evidence in an employee’s communications in cyberspace. Two recent cases make clear that emerging law tends to favor an employer’s ability to tap into an employee’s social media space as another litigation tool.

In Indiana, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit on behalf of several employees who claimed emotional distress resulting from the alleged wrongdoing. As part of its defense, the employer sought to discover information from the plaintiffs’ Internet social networking site profiles and other communication from their Facebook and MySpace accounts. The court decided that this information was discoverable by the employer because the plaintiffs already had shared the information with at least one other person through private messages and perhaps a larger number of people through postings.

Similarly, in New York, the court rejected an employee’s assertion that her social media activity was private and could not come out as part of the lawsuit. She had sued her employer claiming discrimination based upon her disability. The employer sought to use her Facebook content as evidence that she was not disabled at all. Rejecting the plaintiff’s privacy concerns, the court explained there is no right to privacy in social media content, adding that when a person chooses to disclose information on a social media site this act of sharing such information weakens her ability later to claim the information is protected by privacy.

Even if not considered private, how can it be that an employee’s entire social networking site activity is relevant to his specific claims in a lawsuit? An Indiana federal court answered this question in a situation where the employer sought access to its employee’s entire body of social networking activity on Facebook and MySpace to seek evidence about the employee’s emotional distress claim.

The court determined all of the employee’s social networking activity must be turned over to the employer, including any profiles, postings or messages, status updates, wall comments, causes joined, groups joined, activity streams, and blog entries that reveal, refer or relate to any emotion, feeling or mental state.  Even though the courts’ recent actions show a general favoring for the employer when it comes to discovery of employees’ social media activity during a lawsuit, employers would be wise to watch their own social media activity. The impact of social media in trials reaches across the courtroom to everyone involved in the litigation, including the employer’s agents and key witnesses. Accordingly, employers should view the courts’ rulings on social media as a premonition and make sure their own organization is in order with the appropriate social media protocol and policies.

Lori Higuera, a director in Fennemore Craig’s Litigation Section, co-authored this article.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Friending Co-Workers

Social Media Series: Is “Friending” Your Work Colleagues A Good Idea?

This article is part of an on-going, social media series.


Any good comedian knows you must tailor the joke for the crowd. The same approach is true in the work environment. A supervisor might comment on a football team cheerleading squad in different ways to his bar buddies than he would to a subordinate at work. Unfortunately, to a large extent, Facebook and other social media outlets do not provide the tools by which to discriminate which joke gets told to what audience. This can lead to many pitfalls for employers.

If a supervisor’s sexually inappropriate jokes told around the water cooler at work could result in legal liability for the employer, then it is likely a bad idea for the supervisor to send Facebook messages to subordinates with the same inappropriate jokes. In fact, according to one recent survey, nearly 50 percent of employees felt uncomfortable when “friended” by subordinates, co-worker peers, and/or their supervisors. It’s easy to understand why.

Suppose A posts pictures of herself at the beach in a bikini. What if B, A’s supervisor, is Facebook friends with A and comments to A in a work email about how great A looks in her swimsuit? This use of social media could create a hostile work environment and lead to a discrimination action.

Supervisors and employees should be reminded that federal and state non-discrimination statutes can apply to communications between an employee and his or her coworker or supervisor done during non-work hours and online, not just in person at the office.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media at Work

Social Media Series: Companies Need To Set Parameters For Social Media Use At Work

This article is part of an on-going, social media series.


If you run a business and provide Internet-enabled computers to your employees, it is crucial that they understand how or if they can engage in social media while on the job.  Given how fast our world is moving, some would say that to prohibit employees from tapping social media at work could hinder the business — particularly if employees are engaged in social media for work purposes. Others would argue that it’s a slippery slope and that if employees can use social media for work, they will naturally engage in it for themselves.

Therefore, employers should clearly address, by policy, an employee’s use of social media in marketing, publicity and networking. And, the employer also should address employees’ use of social media for non-work activities that can impact the employee’s work.

In order to write a social media policy that is appropriate for your workplace, it is important to consider several questions.

First, does the employer expect employees to use their personal social accounts for marketing the business?  If so, then the employer needs to be cognizant of the fact that the employee’s personal account might contain non-work related information that is not representative of the employer.

Second, is the employer going to create work-related social media accounts that employees would be required to use?  If the employee uses employer-provided social media, such as blogs, then the social media policy needs to specifically address prohibited types of content (e.g., sending or posting offensive, obscene, or defamatory material or disclosing confidential or proprietary information).

If the employer decides to allow employees to engage in personal social media on the job, the employer also should consider whether to include a general prohibition against using social media in a way that is inconsistent with the employer’s interest or otherwise violates existing policies. Additionally, when the employee’s affiliation with the business is apparent, the employer might suggest that the employee include a disclaimer that the views expressed on the social media outlet are personal in nature and in no way represent the views of the employer.

Lori Higuera, a director in Fennemore Craig’s litigation section, co-authored this article.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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Social Media Employment

Social Media Series: Using Social Media In Hiring And Firing Employees

This article is part of an on-going, social media series.


With an estimated 34,000 Google searches every second, the Internet is most assuredly a source of information for employers when making hiring and firing decisions. Given the inevitable use of the Internet to make these decisions, there are a number of questions that employers should consider:

  • Should an employer use the Internet to investigate prospective employees?
  • What liability could there be if an employer uses the Internet in this manner?
  • Should an employer affirmatively address, in its practices or procedures, the use of the Internet to investigate prospective employees?
  • May an employer terminate an employee for online content posted during non-work hours?
  • Does it matter whether the employee’s online content is or is not about work-related topics?
  • What recourse, if any, does an employer have in disciplining an employee for inappropriate conduct on social media?

 

Prospective employees generally know that they should scrutinize their online presence so as not to have their resume hit the trashcan due to one weekend of debauchery posted on a Facebook photo album. Employers, on the other hand, too often fail to scrutinize their use of social media in hiring. Whether there is an official policy to run an online search of a prospective employee or informal protocol of the hiring manager, an employer’s practices and procedures should address the use of social media to investigate prospective employees.

Businesses should be aware of the potential liability in searching the online content of prospective employees. For example, a human resources representative decides to look up a prospective employee on Facebook and discovers that the individual is two months pregnant. She decides not to hire that candidate. Now, the business is vulnerable to an employment discrimination lawsuit if the candidate finds out about the human resources representative’s online activity and links the decision not to hire to the candidate’s pregnancy.

If a business wants to affirmatively use social media in evaluating the candidate and in hiring decisions, then it should express this practice in a social media policy and remind interviewers of the pertinent laws prohibiting discrimination in employment decisions.

Firing

In a survey conducted by the Health Care Compliance Association and the Society of Corporate Compliance and Ethics, almost 25 percent of respondents reported that the employer had disciplined an employee for conduct on Facebook, Twitter or LinkedIn. In November 2010, the National Labor Relations Board (NLRB) initiated an unfair labor practice action on an employer for terminating an employee who posted personal negative comments about her supervisor on Facebook. The NLRB argued that the employer’s termination was unlawful under the National Labor Relations Act (NLRA) in that it was based on a policy that prohibited employees from engaging in “protected concerted activities” — discussing the terms and conditions of their workplace with each other.

In an effort to avoid common traps in cyberspace, employers should seek legal counsel when developing a policy that outlines the accepted use of social media in hiring decisions, as well as firing decisions. For instance, while there may be certain circumstances where an employer can terminate an employee for his personal online communication performed off the clock and outside the office, there are other circumstances where an employer cannot take such adverse action. A public employer generally cannot prohibit its employees from engaging in private communication that is protected by their First Amendment right to free speech. Similarly, an employer generally cannot fire employees for online discussions with co-workers about the terms and conditions of work, such as how much pay each employee at the office earns.

Such a social media policy has two important benefits: it helps employees to align their conduct with the company’s expectations and it helps the company to support a decision to reprimand an employee as appropriate under the expressed standard. Employees left to question the cause of their termination are often the ones who also decide to visit the Equal Employment Opportunity Commission to explore filing a discrimination charge and/or the NLRB to file an unfair labor practice charge against their employer.

Carrie Pixler, an associate with Fennemore Craig and a member of the firm’s Litigation Section, co-authored this story.

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What are your thoughts regarding this article?
Your comments won’t go unheard! (Or unread for that matter.)
The authors of this on-going social media series will be back monthly to answer any questions you may have and/or to continue the discussion. So let us know!

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