Is Your Social Media Policy Clear?
Social media use in the workplace has become a fact of life for employers. Many companies have even come to embrace once-feared social networking sites, such as Facebook and Twitter, blogs and other web-based tools for client development, recruiting, branding and other business purposes. Employees' social media use--both inside and outside the workplace--remains a double-edged sword for employers, however, promising both business opportunities and risks. A solid first step in managing the risks is adopting an appropriate policy for social media use.
Though the most obvious problem companies face when employees use social media during working hours may be decreased productivity, employers should not lose sight of the less obvious legal risks inherent in web-based applications. Consider, for example, an employee who reveals confidential or proprietary information in a blog entry that can be viewed by millions of readers, or a supervisor who posts discriminatory comments on his public Facebook page regarding employees. What about an employee who engages in criminal conduct using her employer's computer? Employees can even subject their employers to legal liability by promoting the company's services or products without disclosing the employment relationship. Employees can also harm their employer's reputation by using social media to criticize the company or its clients. These are just a few examples of how employees can inadvertently--or intentionally--put their employers at risk through social media use.
Employers may also encounter legal issues when disciplining employees for improper social media use. Is it permissible to discipline an employee who routinely criticizes his supervisor on Facebook? Or calls in sick to work and then posts Facebook updates revealing that she took the day off to go the beach? Before taking an adverse employment action against an employee based on his social media use, employers must consider whether the individual's actions are legally protected. Some states, for example, have laws protecting employees' legal off-duty activities and political activities or affiliations. Another law employers should consider is the National Labor Relations Act, which protects employees who engage in "concerted activity," which often includes the right to discuss the terms and conditions of their employment with co-workers and outsiders. And federal and state whistleblower laws protect employees who complain about (among other things) potential securities fraud violations, in certain situations.
With all of these potential risks from employees' social media use, what can employers do to protect themselves? Though not an absolute shield from legal risk, employers would be well-served by adopting social media use policies that are consistent with their organizational culture and approach to social technologies. The social media policy should make clear to employees what the employer expects with regard to social media use, both on and off the job.
These expectations may vary between companies, but employers should make clear that employees must comply with all pre-existing company policies--such as rules against conduct that may result in unlawful sexual harassment, rules prohibiting disclosure of confidential or proprietary information, and company policies governing the use of corporate logos and other branding--when engaged in social media use. Employees should also be reminded that the company's systems may not be used for any illegal activity, including downloading or distributing pirated software or data. Other possible provisions include a reminder that if the employee mentions the company, he or she must also include a disclaimer stating that any opinions expressed are the employee's own and not the company's. Employers may also consider updating their policies to define what is considered "acceptable use."
Whether or not companies decide to embrace social media for business purposes, they can no longer ignore its role in the workplace. By anticipating the risks of employees' social media use and crafting an appropriate policy, employers can make clear to their employees what is acceptable and what is not.
For a more comprehensive discussion of social media use in the workplace, see the recent study from Jackson Lewis (PDF).