Social Networking and Your Business

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Want to read a stunning fact? If Facebook was a country, it would be the fourth largest country in the world! What many considered a fad in the beginning has quickly evolved into The Undiscovered Country - for employers and lawyers alike. That's why many employers, including this one, have developed social networking policies. These policies are distinct from email and internet use policies and technology policies. They are, however, designed in conjunction with these and other policies, such as those on conduct/discipline, privacy, confidential/proprietary information, to address employee use of social media like Facebook, Twitter, and LinkedIn.

One size does not fit all when it comes to formulating a social networking policy. One of the initial decisions facing employers is whether to permit access to such sites at all. Some employers have very open policies that encourage the use of social networking for business interests; others are more circumspect. In any event, employers cannot afford to ignore social networking. Employers are impacted in many ways: employee productivity and morale, company image, and protection of confidential employer information.

To begin, do not just pull a sample policy from the Internet. While plenty are available, it is the information that you do not have that can hurt you. Internet samples usually do not identify who wrote the policy, the laws in that employer?s jurisdiction, or even the business interests the policy seeks to promote. You need to determine the business goals and needs to be met by your social networking policy. This will require cooperation and communication among your IT department, human resources, legal, and company decision-makers to formulate an effective policy.
 
Employee use of social networking media can have wide-ranging legal ramifications for employers. Both harassment and discrimination claims may be brought as a result of employees posting offensive materials, using profanity or racial epithets, or disclosing membership of an employee or applicant in a protected class. Policies that prohibit employee collective discussions of wages and hours, employment benefits, dress codes, or other working conditions may violate the National Labor Relations Act. Employees may post items that constitute intellectual property infringement or disclose trade secrets. Various tort claims may also result from employee use of social networking media. Claims like defamation based on negative comments/posts on competitors, invasion of privacy, negligent hiring/retention can all stem from inappropriate use of this media.
 
Other federal and state laws can be triggered in the absence of an effective social networking policy. The Stored Communications Act, 18 U.S.C. ? 2701-11, and state-law counterparts, make it an offense to access stored communications intentionally without authorization or in excess of authorization given. Do you know what your managers are doing? Without guidance from a comprehensive social networking policy, managers could ?accidently? violate these types of laws by accessing employee social media information or soliciting password information.

Depending on your business goals and access decisions, social networking policies have several key components. They should:

  • Notify employees that social networking activities are subject to all company policies
  • Require employees to act respectfully in their social networking/blogging activities. The policy should prohibit inappropriate use of social media and provide specific guidance on what is inappropriate
  • Inform employees that they have no expectation of privacy in their use of company technology
  • Remind employees that company technology and communications, including those made through social media, are for work use only and may be accessed at any time by the employer
  • Prohibit disclosure of confidential information/trade secrets, the use of legally-protected/copyrighted information, and dissemination of personal information of co-workers
  • Require disclaimers be used that indicate that the opinions stated therein are those of the employee and not the employer
  • Explain the consequences of violating the policy

Once the policy has been drafted, it must be distributed to the employees. You should consider having them sign off on their receipt and understanding of the policy. You should offer training on the policy and may want to consider offering training on the use of social media, as well. Lastly, you must ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

Authors

Of Counsel
(304) 290-0818
Morgantown, WV